                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2008

Lawrence v. Philadelphia
Precedential or Non-Precedential: Precedential

Docket No. 06-4564




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Recommended Citation
"Lawrence v. Philadelphia" (2008). 2008 Decisions. Paper 1087.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1087


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                                PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                  No. 06-4564




 RICHARD LAWRENCE; KEVIN JACKSON; JOHN COLE;
  SCOTT D. MCGARRIGLE; RICHARD MARKS; IVAN T.
    DAMJANOVIC; MORGAN MILLER; ALAN SIGAL;
  W. RUSSEL BRYANT; MERVIN K. GHANI; ALLEYNE
              ARTURO; JONI H. KUONEN;
          DOMENIC ROSATI; JOHN W. GETTY;
         JOSEPH C. MANCINI; WILLIAM BRENT;
          MICHAEL BROOKS; DUANE J. BOYES;
        MICHAEL A. FLAK; J. TODD VREELAND;
        ADAM WOJNICKI; TIMOTHY S. O'TOOLE;
        CARL F. PFEFFERLE; BETH ANN GLYNN;
  WILLIAM MURPHY; MATTHEW KONIECZKA; CORY
             BULLOCK; WILFRED SPEAKES;
      JOSEPH A. DECICCO; MEDLEN E. AREVALO;
   STEPHEN M. SPECHT; SAMUAL S. CHEN; RASHAW
      REED; CLEO BOND; CHRISTOPHER F. LAPPE;
        AMADOR ROLON, II; CHRISTINA YATES;
     COLLEEN CARLIN; RICARDO ORTIZ; JAMES H.
             ATKINSON, III LUIGI ROSMINI;
      BARRY ROSENBERG; HILDA L. CARTAGENA;
   CHRISTOPHER BALDINI; BRIAN FINDLAY; JOHN J.
           BECHT; US TRUSTEE FRED BAKER;
     DAVID SCHWARTZMAN; MICHAEL WRIGHT;
 PATRICK J. CAREY; AARON C. BOYD; LAWRENCE R.
        BELITSKY; THOMAS J. DOUGHERTY, JR;
WILLIAM MAUDE; JOHN IUSHEWITZ; CHET ZAREMSKI;
    STEPHEN EDWARDS; JOSEPH F. RYAN; AMANDA
            KUKODA; STEPHEN MCCARTHY;
       EDWARD J. LENDVAY; TERESA Y. HEIGHT;
    RAECHEL ALEXANDER; DIANE M. PELLECCHIA;
         KENRIC C. GARY; MARK E. LEHMANN;
                 PATRICK X. CROWLY;
  MICHAEL J. SUTTON; TIM M. KING; JOHN OPONIK;
 DONNA C. COLEMAN; JOHN B. SPENCER; RAYMOND
         ANDERSON; DARREN P. MCLENDON;
      JOSEPH V. GILMORE, JR.; ANNA T. RITTER;
     NADINE MCFARLANE; COLLEEN M. SPECHT;
DANIEL RODRIGUEZ; PETER J. SPECOS. SR.; MATTHEW
         CRANE; CHRISTOPHER M. RUSSELL;
         ALAN ELHYANI; HAROLD A. COFER;
             JEFFEREY M. DELLA PENNA;
       VINCENT ORTIZ; CHRISTOPHER MCKEE;
 RANDY J. WADDELL; LARRY D. CARROLL; MONIQUE
WILSON; STEPHEN GRAN; TIMOTHY O'NEIL; JOSEPH A.
              VERICA, JR.; KEITH DAVIS;
SHONDA DAVIS; ANNE RAVEN; JOANNE PRZEWORSKI;
    CHRISTIAN CAMPBELL; WAYNE A. CHISHOLM;
   KINZLE E. EDWARDS; PAUL E. KLEIN; MAHNIA K.
           MCMULLEN; NELSON MERCADO;
ALLEN NORTON; RAPHAEL JONES; TRACY JEFFERSON;
     TANYA BROCKENBOROUGH; KHARY HUNT;
KIA DAVENPORT; BEVERLY ELUM; BRUCE R. SQUARE;
LAWRENCE AMAKER; PETER A. SAVARESE; RUSSELL J.
           WELLS, JR.; APRIL SMALLWOOD;
        DON ALSTON; LOUIS J. COLELLA, JR.;
 KALE ETCHBERGER; ZACKARY M. RUNIONSI; MACK
   ABDUL-LATEEF; BRIAN C. ACKERMAN; MARC E.
           AMOROSE; KERMIT ANDERSON;
     COLLEEN ANDREJCZAK; DEBORAH APONTE;
     SCOTT M. BAHNER; JESSICA L. BIEDRZYCKI;
            LAWRENCE O. BLOOMFIELD;
VINCENT R. BOLOGNONE; RICHARD T. BRADSHAW, JR;
 OREN BROADWAY; DANIEL J. BROOKE; DONALD A.
  BRYAN; KAREN BUCCA; ROY BURKETT; ROBIN A.
       BURNS; BRIAN K. BYERS; JAMES BYRNE;
          ESTATE OF MICHAEL L. BENNETT;
   RYAN J. CALLAHAN; JOHN A. CANCELLIERE, JR.;
       KEVIN F. CAREY; MANUEL CARTAGENA;
  DAVID A. CISZKOWSKI; JERMAINE A. CLEVELAND;
        ROBERT COLL; FRANCIS S. CONGDON;
 JOSEPH A. CONNOR; KATHY L. CONNORS; JOANN M.
               CONTI; MARK G. CREWS;

                       2
        ERIC H. CROUCH; OLIVER H. DAVIES, JR.;
 CAROLYN DELORENZO; SHANNON M. DENNIS; LISA
           DICASTANDO; JOSEPH A. DICICCO;
 KATHERINE DICLEMENTI; DANIEL A. DOLPHIN, SR.;
      SHARON DONAHUE; MICHAEL P. DONAHUE;
    BRIAN J. DOUGHERTY; MARK J. DOYLE; BRIAN
            EVERAGE; RAYMOND S. FARLEY;
     MICHELE FERRERA; MATTHEW J. FLANAGAN;
    GREGORY M. FLOOD; CRAIG FRENCH; QUENTIN
               FULLER, JR.; PAUL L. GAC;
JAMES G. GADEBUSCH; SHANE T. GAGHAN; ROBERT J.
  GALLAGHER; FRANCIS J. GALLAGHER, JR.; DAWN
    (LOESCH) GARROW; RAYMOND F. GEORGE, JR.;
ANDREAS GEORGIADES; ROBERT L. GETZ, JR.; ROBERT
 D. GLASGOW; SAMUEL J. GOLLAPALLI; GREGORY R.
    GORDON; NICHOLAS GUIRATE; JOSEPH HAINES;
     FRANCIS P. HANNA; KATHERINE M. HANNAN;
            DAVIS HANSEN; OLIVIA HAVEN;
   WILLIAM HENDERSON; JOHN J. HOLSTEIN; JOHN
           IUSHEWITZ; BETH ANN JABLOSKI;
JARED JACOBSON; DAWN JONES; DAVID P. KEARNEY;
JOSEPH J. KENNISH, III; GERARD KERSHW; PAUL KIRK;
       VERONICA M. LAKE; HOWARD M. LAUDER;
  CHRISTOPHER G. LENTZ; FREDERICK J. LICSAUER;
JAMES A. MACMILLAN; RAUFAIL E. MALLARD; JAMES
 P. MARCOLONGO; PATRICK L. MCALLISTER; SHERRI
          MCALLISTER; MARTIN W. MCCALL;
     LISA I. MCCALL; STEVEN MCCLOSKEY; JAMES
    MCGUIRE, III; JOSEPHJ. MCKAY, JR; CHRISTINE
      MCKEE; TANJI MICHAEL; DAVIS MITCHELL;
       DAVID MITCHELL, JR; THERESA MOBERG;
  CHER MOORE; BENGIE D. MOORE; JEFF M. NEARY;
THEODORE J. NULTY; THOMAS P. NYSZCZOTA; KERRY
      L. OANDASAN; COLLEEN O'DONNELL; DENIS
             REACOCK; JOSEPH PEMBROKE;
   TERRANCE PRICE; JOANNE PRZEWORSKI; MARK
  PUGH; MICHAEL QUATROCHI; ELVIN RODRIGUEZ;
     THOMAS J. RUSBY; JOSEPH RUSSELL; GERARD
              SCHRAMM; KARL SCHUJKO;
     JEFFREY A. SCHURR; ARTHUR W. SEEGER, III;

                        3
 MICHAEL R. SHANKS; HENRY JAY SINGLETON, JR.;
        IRAN D. SMITH; LISA SPONHEIMER;
     MARK ST.MRIE; YOLANDA C. STALLINGS;
   THERESA L. STRINGER; KIM W. TAIT; MATTHEW
         TANKELEWICZ; JAMES TAYLOR;
         COLLEEN TEEFY; PAUL TERSHA;
WILLIAM R. THORNTON; DAVID TIZOL; JOAN TOOHEY;
    CHARLES TUTTLE; LAMONT WASHINGTON;
                 CRYSTAL YATES,
                                    Appellants
                        v.

   THE CITY OF PHILADELPHIA, PENNSYLVANIA




                      No. 06-4576




                DONALD H. ALSTON,
                              Appellant
                       v.

   THE CITY OF PHILADELPHIA, PENNSYLVANIA




     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
         (D.C. Nos. 03-cv-04009, 04-cv-02764)
     District Judge: Honorable Clifford Scott Green




                Argued October 25, 2007

   Before: SLOVITER, CHAGARES, and HARDIMAN,
                    Circuit Judges

                           4
                      (Filed: May 28, 2008)
                               ____

Robert A. Jones (Argued)
Chamberlain, Kaufman & Jones
Albany, NY 12205

       Attorney for Appellants

George A. Voegele, Jr. (Argued)
Cozen & O’Connor
Philadelphia, PA l9l03

       Attorney for Appellee

Brian P. Walter
Liebert Cassidy Whitmore
Los Angeles, CA 90045

       Attorney for Amici-Appellees League of California
       Cities, International Municipal Lawyers Association,
       National League of Cities, National Association of
       Counties, National Public Employer Labor Relations
       Association and the International Public Management
       Association for Human Resources

                               ____

                   OPINION OF THE COURT


SLOVITER, Circuit Judge.

       It is generally known that by law an employer must pay
time-and-a-half for overtime. It is less well-known that certain
employment is exempt. We must decide an issue of first
impression in this circuit, that is whether paramedics employed
by the City of Philadelphia Fire Department have “legal
authority and responsibility” for fire suppression activities within
the meaning of the Fair Labor Standards Act, thereby bringing

                                 5
them among the exemptions.

                              I.
                          Background

        Appellants are Fire Service Paramedics (“FSPs”)
employed by the City of Philadelphia Fire Department (“Fire
Department”). In July 2003, Appellants filed suit in the District
Court for the Eastern District of Pennsylvania, alleging that
Appellee, the City of Philadelphia (“City”), had violated the
overtime payment requirements of the Fair Labor Standards Act
(“FLSA”), specifically 29 U.S.C. § 207(a) (requiring employer
to pay overtime for any employee working more than forty hours
in a workweek). Pursuant to a stipulation approved by the
District Court on May 31, 2006, other FSPs with similar claims
were permitted to “opt in” to the action. See 29 U.S.C. § 216(b)
(permitting individuals to “opt-in” by filing a written consent
with district court). There are now approximately 300 named
plaintiffs.

        In the District Court, neither party sought a jury trial.
Instead, the parties filed cross-motions for summary judgment.
Both parties agreed at summary judgment that there were no
material facts in dispute, leading the District Court to conclude
that the case was appropriate for summary judgment. The
parties take the same position on appeal.

       On September 29, 2006, the District Court entered
summary judgment in favor of the City and against the FSPs,
thereby determining the issue of liability. Lawrence v. City of
Philadelphia, No. 03-cv-4009, 2006 WL 2847330 (E.D. Pa.
2006). The FSPs appeal, arguing that the District Court erred in
determining that they were trained in and had responsibility to
engage in fire suppression activities as required by 29 U.S.C. §
203(y).

A.     Overview of FLSA Framework

     The FLSA states that, unless otherwise provided in the
FLSA, an employer may not allow its employee to work for

                                 6
more than forty hours in a workweek unless the employer pays
the employee “time-and-a-half” for the hours spent working over
forty hours. 29 U.S.C. § 207(a). Section 207(k) exempts a
“public agency” from subsection (a)’s overtime requirements
with respect to various categories of employees, including
individuals engaged in “fire protection activities.” 1 Section
203(y) defines what it means to be engaged in “fire protection
activities.” There are three statutory requirements that an
individual must meet in order to be engaged in fire protection
activities. The individual: (1) must be “trained in fire
suppression;” (2) must have “legal authority and responsibility to
engage in fire suppression;” and (3) must be “employed by a fire
department.” 29 U.S.C. § 203(y). The parties agree that the
third requirement has been met and is not at issue. They focus
on the other two requirements, primarily whether FSPs are
trained in fire suppression and have legal authority and
responsibility to engage in fire suppression within the meaning
of the exemption to the FLSA. If so, the exemption applies, and
the City can pay a lower rate of overtime. If the City has not
shown that both requirements are met, the exemption does not
apply, and the City must comply with the higher overtime rate.

B.     History of the FSP Program

       The Fire Department employs firefighters that are
assigned to about sixty engine and twenty-nine ladder companies
in over sixty firehouses throughout the city. The City also
employs about 300 FSPs, assigned to forty different medic units,
which are located in firehouses.

       In the early 1970s, the Fire Commissioner decided that
the Fire Department had developed the need for individuals with



       1
         Other exemptions cover individuals engaged in “law
enforcement activities,” including individuals employed as security
personnel in correctional institutions. 29 U.S.C. § 207(k). There
are also exemptions for other professions, such as, inter alia,
hospital employees, id. § 207(j), retail or service employees, id. §
207(i), and public transportation employees, id. § 207(a).

                                 7
paramedic skills to become part of the Fire Department’s
emergency response team. Because firefighters had some
experience with first aid, the Commissioner decided that certain
firefighters would be converted into fully trained and certified
paramedics. The first group of those “cross-over” individuals
went into service in 1973. In 1980, the City created a specific
job classification for “fire paramedics,” indicating that those
individuals were fully trained both as firefighters and
paramedics; the City even offered a ten percent pay increase to
“fire paramedics” in order to aid recruitment efforts. App. at
2086.

        Throughout the 1980s, the cost of sending firefighters to
paramedic school (a one-year program) continued to increase,
and as a result, in 1988 the City began hiring individuals already
trained as paramedics for the position of “fire paramedic.” The
City then sent those individuals to the City’s Fire Academy for
instruction in fire suppression, hazardous-materials response
training, and the City’s emergency protocols and procedures.
Those paramedics were designated “fire service paramedics.”
Beginning in 1989, most of the FSPs recruited were trained and
certified paramedics from outside the Fire Department who were
then instructed at the Fire Academy with respect to the Fire
Department’s practices and protocols.2

        Today, although firefighters and FSPs work for the Fire
Department, they are distinct positions. Paramedic training takes
about one year, whereas firefighter training takes sixteen weeks.
Paramedics receive higher pay than firefighters generally, and if
a paramedic wanted to switch jobs and become a firefighter, s/he
would be considered to be “demot[ing] down.” App. at 1241.
At the conclusion of their training, firefighters receive a
certificate designating them in the class “Firefighter I;” FSPs do
not receive such a certificate, but rather receive a certificate for



       2
          For purposes of collective bargaining, FSPs are
represented by the same union as firefighters, the International
Association of Firefighters, Local 22. We note that the union has
not taken a position in this case.

                                 8
“Fire Service Paramedic Orientation” in addition to the
paramedic certification they are required to obtain before joining
the Fire Department.

        The collective bargaining agreement provides that FSPs
work according to rotating eight-day shifts, known as “platoon
schedules.” A platoon schedule consists of either: (1) two ten-
hour shifts followed by two fourteen-hour shifts, followed by
four days off (called A, B, C, or D platoon), or (2) four twelve-
hour shifts followed by four days off (called E or F platoon). An
employee may work as little as thirty-four hours or as many as
forty-eight hours in a typical work week. FSPs receive pay for
forty-two hours of work each two-week pay period, whether they
worked thirty-four hours or forty-eight hours. For the forty-first
and forty-second hour of each pay period, FSPs are paid at a
higher rate than for the first forty hours but lower than time-and-
a-half. FSPs receive “overtime pay” only if they work an extra
shift, or work fifteen minutes or more longer than their assigned
shift. It is therefore undisputed that in certain weeks, Appellants
work more than forty hours but do not receive “time-and-a-half”
pay for that time.

C.     Facts Regarding FSP Authority and Responsibility for
       Fire Suppression Activities

1.     Job Duties and Mission of FSPs

        In addition to the mission of the Fire Department, which
as set forth in its Annual Report is “to deliver efficient and
effective fire protection for the purpose of minimizing the loss of
life and property,” and which includes “fire abatement and
extinguishment;” “comprehensive fire prevention programs
conducted throughout the community;” and “fire investigation
services to determine the origin and cause of fires,” App. at 97,
the Mission Statement states that the Philadelphia Fire
Department is “also charged with delivering high quality, pre-
hospital emergency medical care and transportation in a timely
and professional manner. That is accomplished by providing
EMS personnel with up-to-date training in emergency medical
services and utilizing state-of-the-art equipment.” App. at 97

                                 9
(emphasis added).3 The job description for an FSP states that the
position involves “advanced life support and field paramedical
work responding to emergency calls from the public to perform
medical assistance with emphasis on the stabilization of patients
to permit safe transport to a full-service medical facility.” App.
at 17 (emphasis added). We note that neither the Mission
Statement nor the job description refers to any role with respect
to fire protection or fire suppression.

        The job description sets forth typical examples of work to
be performed by FSPs, their required skills, knowledge and
abilities, and their minimum acceptable training and experience.
Every substantive aspect of the job description is medical in
nature. For example, the job description states that an FSP must
be able to observe patients’ vital signs, clean wounds, treat
burns, administer drugs, and prepare reports on each treatment
given. The job description does not mention any fire protection
related examples of work to be performed, or fire suppression
skills needed to perform the job of an FSP, except that it does
state that FSPs should receive orientation in the use of fire



       3
           It appears that the category of EMS personnel
encompasses, but is not co-extensive with, the FSP personnel.
According to the Annual Report in the record, the 2001 activities
of the Philadelphia Regional Office of the Emergency Medical
Services listed “Direct and coordinate the education, training,
evaluation, monitoring, testing, certification, continuing education,
re-certification and reciprocity of 2,933 Emergency Medical
Technicians, 1,226 Paramedics” and others. App. at 109. This
suggests a distinction between EMTs and FSPs, as does the
discussion of EMS Training which stated that “EMS training
covers a myriad of topics to give Paramedics and Emergency
Medical Technicians the knowledge and skills needed to deliver
high quality, pre-hospital care.” App. at 108. The argument of this
appeal did not focus on the relationship between EMTs and FSPs
(except for the First Responders, to be discussed hereafter), and it
does not appear to be relevant to our disposition. If deemed
relevant on remand, the District Court can make the appropriate
inquiry.

                                 10
equipment “as applicable to paramedical work.” App. at 17-19
(emphasis added).

       FSPs are dispatched to provide emergency medical
services (“EMS”) to individuals for all kinds of problems, not
only in response to fires. Philadelphians suffering heart attacks,
strokes, or broken bones who call 911 are referred to the Fire
Department. In fact, FSP dispatches to fire scenes account for
only about one tenth of one percent (i.e., .1%) of FSP ambulance
dispatches in a year, that is, for some appellants, only five to ten
times per year, contrasted with 6,000-8,000 total EMS
dispatches.4 When a fire is reported, a paramedic unit is not
always dispatched to the scene; rather, the Fire Communications
Center determines whether a paramedic unit is necessary and
sends one only if necessary.

        According to a Fire Department directive for FSPs, a
principal purpose of the EMS personnel is to establish a first aid
station and provide first aid. The directive specifically states
that the FSP should be “standing by” and ready to provide first
aid assistance as necessary. App. at 29. The FSPs are supposed
to park their paramedic vehicles in a location that will provide a
means of quick egress from the fire scene, i.e., at least two
blocks away. The directive does not say anything about fire
suppression duties of FSPs.

       The City emphasizes the declaration of former Fire
Commissioner Harold Hairston that FSPs are trained in fire
suppression so that they “can provide fire suppression if called
upon to do so by their incident commander or by other
circumstances.” App. at 2100-01. He said it was his policy to
authorize FSPs “to engage in fire suppression activities when
called upon by an Incident Commander or in any other
circumstance that required them to take such action.” App. at
2101. Fire Commissioner Lloyd Ayers stated the same in his



       4
         The activities of the FSPs are at issue here, not those of
fire departments nationally to which the dissent refers. Dis. Op. at
n.7.

                                 11
declaration. In addition, during the first week of their training
program, FSPs receive the FSP Code of Conduct, which they are
required to sign in order to graduate from the Fire Academy.
The Code states, in relevant part, that the cadet “recognize[s]
[his or her] responsibility to render Fire Suppression . . . .” App.
at 2166. However, at oral argument, the City could cite no
instance in which an FSP was called upon to enter a burning
building to put out a fire, or was expected to perform any fire
suppression duty other than a few marginal instances involving
nothing more than moving a hose line.

        The Fire Department evaluates FSPs and firefighters
based upon the same criteria, and uses the same form for both.
There are nine criteria listed on the form, including Teamwork,
Dependability, Knowledge, Quality of Fire Duty, and
Participation in Fire Prevention Activities. With respect to
“Quality of Fire Duty,” the form instructs the evaluator to rate
the FSP’s “[a]bility as a firefighter: effort to do a good job at
fires or places of emergency without persuasion.” App. at 2268.
The “Participation in Fire Prevention Activities” criterion rates
“[i]nterest and enthusiasm in fire prevention activities,
originality of ideas, [and] amount of participation.” App. at
2268. Some of the FSP evaluations make specific reference to
an FSP’s performance on firegrounds. For example, plaintiff
Michael Brooks’ evaluation states that his performance on the
fireground is commendable, although the evaluation does not
state that Brooks performed fire suppression duties. Another
evaluation, that of plaintiff Duane Boyes, states that Boyes’
enthusiasm on the fireground is exemplary. We note that the use
of the term fireground does not imply fire suppression activities,
because the FSPs are, on certain occasions, called upon to
provide paramedic services on a fireground.

        The FSPs spend most of their time, however, “responding
to emergency calls from the public to perform medical
assistance,” with particular emphasis on stabilizing patients so
that they can be safely transported to a full-service medical
facility. App. at 17. Those medical calls in 2004 comprised
approximately 5,990 of the 6,000 calls received by FSPs and
were entirely medical in nature.

                                 12
2.     Fire Suppression Activities

        The parties do not agree whether FSPs ever engage in
certain fire suppression activities. On occasion, a superior
officer may instruct an FSP to assist with a hose line. For
example, FSP Boyes testified that a chief directed him to help
“stretch hose line” at the fireground. App. at 1438. FSP
William Brent, another plaintiff, testified that on one occasion he
used the fire extinguisher located in his ambulance to try to put
out a vehicle fire when he arrived on the scene before a fire
engine had arrived. FSP Brooks stated that he has pulled a fire
hose off of a fire truck to assist the firefighters, and has hooked a
hose up to a hydrant, but that he never carried a hose into the fire
scene itself. Several other FSPs testified that they had moved
hose line or carried it for short distances if the hose was blocking
traffic or impeding access to the fire site.

         Thomas Comerford, a retired Fire Department Battalion
Chief (a middle management safety officer), testified at his
deposition that in forty-four years working for the Fire
Department, he never saw an FSP “handling” a fire hose,
meaning using a hose in active firefighting. On occasion he saw
an FSP help out by taking kinks out of hose, but the FSP was
still standing by waiting to perform medical duties should they
arise. Comerford stated that he, as an on-site manager,
“wouldn’t let [FSPs] anywhere near a fire building,” App. at
1256, because it is unsafe and more importantly, unsanitary,
because the FSP’s duty is to provide medical care. Comerford
testified that he “reprimanded a paramedic for going into a
burning building to try to save . . . a kid.” App. at 1256. He told
the paramedic that if he wanted to be a firefighter, he should
“take the cut in pay and transfer over,” and the paramedic did so.
App. at 1257. According to Comerford, paramedics who try to
be firefighters are a problem, not part of the solution.

       The City contends that there is no record evidence of any
formal reprimand of FSPs for performing fire suppression duties.
The City points to former Human Resource Manager Ronald
Augustyn’s declaration stating that to the best of his knowledge
“no fire service paramedic has been disciplined for engaging in

                                 13
fire suppression activities while [he] served as Human Resources
Manager.” App. at 2090; see also App. at 2102 (Hairston
Declaration) (stating that in twelve years as Fire Commissioner
he never knew an FSP to be disciplined for engaging in fire
suppression activities).

        FSP Boyes testified that his understanding of the City’s
policy regarding FSPs fighting fires was, “[t]hat’s not our
responsibility. That’s what firefighters are for. We’re there for
first aid.” App. at 1457. He also testified that if any officer
ordered an FSP to assist with fire suppression efforts, the officer
would have been disciplined if caught. Kevin Carey, an FSP
lieutenant, declared that he was told by Chief George Griffin in
April 2004 that FSPs were prohibited from fighting fires and that
they would be disciplined if caught doing so.

        There is evidence, by way of declaration by at least
eleven FSPs, that they have not entered burning buildings, have
not handled a fire hose to fight a fire on a fireground, and have
not controlled a nozzle on a firehose on a fireground. With one
exception, FSPs have not been ordered by superior fire officials
to use a hose to fight fire or to engage in other fire suppression
activities, and they generally have not done so. The one
exception was when a fire officer ordered a paramedic to “help
out with a hose line” to move the hose over a fence. App. at
1438.

       There have been some incidents of FSPs voluntarily
helping a firefighter at a fire scene, e.g., by helping to move a
hose while the FSP is standing by waiting to give medical care.
This type of voluntary assistance is known as “freelancing.” It is
unclear whether “freelancing” is prohibited by the Fire
Department. There is some evidence that freelancing was against
the standing rules of the Department and was not condoned.
There is also evidence that a person caught freelancing could be
disciplined, and that if an officer allowed FSPs to freelance, the
officer could in turn, be disciplined by his superior officers.

      Occasionally, FSPs must engage in limited fire
suppression activities in the course of their paramedic

                                14
responsibilities. For example, two plaintiffs (Manuel Cartagena
and Paul Klein) were dispatched to a home because a woman
was complaining of stomach pains. When they arrived, the FSPs
entered the home to care for the woman, and while inside
realized that there was a fire in the house. One FSP removed the
woman, and the other attempted to use his small fire
extinguisher to tend to the fire until the firefighters could arrive.
Cartagena and Klein received a citation for their efforts.

3.     Fire Prevention Activities

        In its argument, the City points to fire prevention
activities conducted by FSPs. Plaintiff Donald Alston testified
that at least forty times in his career as a paramedic, he reported
back to his supervisors when he observed fire hazards at
locations where he had performed a medical run. Another FSP
testified that if he saw a broken smoke alarm in a home while
performing a medical run, he would notify the occupant or report
to the supervisor.

4.     Equipment Used by FSPs – Fire Extinguisher, SCBA,
       Bunker Gear

        The City also attempts to support the summary judgment
by pointing to the equipment used by FSPs. Unlike firefighters,
whose first mission is to extinguish fires, FSPs are assigned to
ambulances, not fire trucks. A fire truck must be attended by
firefighters. The paramedic ambulances used by FSPs are not
equipped for firefighting (i.e., they have no water, no hoses and
ladders, no capability to pump water). Each ambulance contains
a small fire extinguisher, which is required in any vehicle that
transports oxygen. Each ambulance also has a Self Contained
Breathing Apparatus (“SCBA”). Commissioner Hairston, whose
declaration was introduced by the City, stated that the purpose of
installing the SCBA was to enable FSPs to render fire
suppression when necessary. However, there is evidence that the
purpose of installing SCBA in ambulances was to give
paramedics an air supply in case they were dispatched to a
chemical spill or other hazardous environment.



                                 15
       FSPs are issued “bunker gear” or “turnout gear,” which is
protective clothing for use in hazardous conditions. The bunker
gear includes a helmet, bunker coat, bunker pants, pair of boots,
two pairs of gloves, mask, and suspenders. FSPs are issued blue
helmets, whereas firefighters are issued yellow helmets.
According to a Fire Department directive, all personnel,
including FSPs, are required to wear bunker gear at a fireground
unless otherwise directed by a superior officer.

5.     First Responder Companies

        FSPs must be distinguished from the members of the
City’s ninety “First Responder Companies,” staffed by
firefighters trained and certified as emergency medical
technicians. The First Responders are assigned to fire engines,
and they are used when there is a medical emergency for which a
paramedic ambulance is not available.

D.     Facts Regarding FSP Training

        Although the FSPs receive training, the training differs
from that given to firefighters. The FSP orientation program,
which, like that for firefighters, occurs at the Philadelphia Fire
Academy, began in March 1989. Between 1989 and the present,
the training program has ranged from four to seven weeks; it is
currently about seven weeks. The first week involves basic
administrative material. Two or three weeks are devoted to fire
suppression instruction, described by the FSP Cadet Guidebook
as “basic-level instruction in some of the fundamentals of
firefighting, hazardous materials incidents, safe operating
procedures, driver training and departmental procedures.” App.
at 896. Finally, three or four weeks involve EMS training. The
FSP training program textbook is the “Brady Manual” for
paramedics. App. at 1888. The FSPs are not required to
purchase the “Essentials of Firefighting” textbook, which is the
text for the firefighting training program, although there may be
times when FSPs receive handouts of excerpts from “Essentials
of Firefighting.” Upon completion of the seven-week program,
FSPs receive a certificate for “Fire Service Paramedic
Orientation,” not a certificate for completing the “Basic Course

                                16
for Firefighter.”

         According to the Cadet Guide Booklet for the 22nd FSP
paramedic class, there are nine “skills evolutions,” or job
standards, that the FSPs must meet in order to graduate from the
Fire Academy. There is evidence that those skills evolutions
have been used consistently since at least 1999. The stated
program goal of the FSP training program, as articulated in the
“Philadelphia Fire Department Skills Proficiency Standards for
Fire Service Paramedic Cadets,” is “[t]o develop the necessary
physical and practical skills a FSP cadet needs to be able to
perform to become an effective paramedic.” App. at 693
(emphasis added). Evolutions #1-#5 require the FSP to
demonstrate proficiency in tasks involving transporting medical
equipment, carrying patients, and using a stretcher. Evolutions
#6-#8 require the cadets to demonstrate proficiency in raising
and climbing ladders. Evolution #9 requires the cadets to
“demonstrate calmness” while rescuing a victim in an area with
little visibility, requiring the use of SCBA. App. at 695.

        Appellants contend that only the first five evolutions are
mandatory and cite to portions of memoranda referencing the
“five (5) components of the required Skills Proficiency Testing.”
App. at 745. Appellants also argue that evolutions #6-#9 do not
test proficiency and do not involve fire suppression. The City
counters that all nine evolutions are mandatory and that
evolutions #6-#9 do involve fire suppression.

        The purpose of the instruction in the two or three weeks
devoted to fire suppression, is “to familiarize [the FSPs] with the
operations of the people that they are going to be working with
in the engines and the ladders, and also it’s familiarization
training for [the FSPs] when they have to utilize certain
firefighting equipment.” App. at 1883. Fireground orientation
also teaches FSPs how to provide medical care safely on a
fireground. The program includes lecture and practical
components.

       The fire suppression classes are taught by firefighter
lieutenants but the instruction that FSPs receive in fire

                                17
suppression would not qualify them to be firefighters; rather, it is
meant to be an orientation to fire suppression. In a 1996
Memorandum, Gary Appleby, the Deputy Chief of the Fire
Academy, explained the purpose of fire suppression training for
FSP cadets as follows: “Although the majority of the time . . .
FSP’s will be engaged in ‘standard’ emergency service/pre-
hospital care, there are numerous occasions in which the FSP’s
must operate in a structure fire, building collapse, hazardous
materials release, etc. Based on these events, Fire Academy
training must prepare the fire service paramedics to meet many
of the identical challenges that Philadelphia Firefighters meet on
a regular basis.” App. at 2536.

        Some FSPs viewed fire-related videotapes as part of their
instruction. The videos, such as the “42nd Street Collapse” and
“E. 29st Street Collapse,” show the roles of both FSPs and
firefighters at a fireground. App. at 2456. They also watched
videos on the chemistry of fire, flashover, defense against fire,
and other similar subjects. The parties disagree about the
purpose of the videos. The City contends that the purpose is to
train FSPs in fire-related topics and show them the different
ways they might be called upon in a fireground situation.
Appellants contend that the purpose of the videotapes was to
instruct FSPs about their duties, specifically on how to stand by
at a scene waiting to treat an injured person while the firefighters
fought fires. In other words, according to Appellants, the
purpose of the videos was not to train FSPs about fire
suppression, but to train them on their medical duties in the
context of a fire scene. The FSPs must take and pass a written
“Final Fire Examination”after their training in fire suppression
in order to graduate from the Fire Academy. FSPs must also
attend in-service training.

       As is evident from the foregoing summary of the facts in
the record, both parties have cited certain instances that tend to
contradict the general weight of the evidence put forward by the
other party. That is not unusual in a large case involving
approximately three hundred plaintiffs. The real issue is whether,
looking at the evidence as a whole, there are any genuine issues
of material fact with respect to the substance of the claims.

                                18
                              II.
                      Standard of Review

       This court reviews the District Court’s decision on
summary judgment de novo. Blair v. Scott Specialty Gases, 283
F.3d 595, 602-03 (3d Cir. 2002). It is well established that the
court must view all evidence and draw all inferences in the light
most favorable to the non-moving party, Davis v. Mountaire
Farms, Inc., 453 F.3d 554, 556 (3d Cir. 2006), and may affirm a
grant of summary judgment only if no reasonable juror could
find for the non-movant, Matsushita Elec. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is
appropriate only if there are no genuine issues of material fact.
Davis, 453 F.3d at 556.

        The rule is no different where there are cross-motions for
summary judgment. In Rains v. Cascade Indus., Inc., 402 F.2d
241, 245 (3d Cir. 1968), this court stated, “[c]ross-motions are
no more than a claim by each side that it alone is entitled to
summary judgment, and the making of such inherently
contradictory claims does not constitute an agreement that if one
is rejected the other is necessarily justified or that the losing
party waives judicial consideration and determination whether
genuine issues of material fact exist.”

       There are additional considerations in an FLSA case
because the FLSA must be construed liberally in favor of
employees. See Tony & Susan Alamo Found. v. Sec’y of Labor,
471 U.S. 290, 296 (1985) (stating that the FLSA should be
construed to the fullest extent of its intended purpose);
Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728,
739 (1981) (explaining that the purpose of the FLSA is to protect
workers from substandard wages and oppressive working hours).

        FLSA exemptions should be construed narrowly, that is,
against the employer. Arnold v. Ben Kanowsky, Inc., 361 U.S.
388, 392 (1960) (emphasizing limited application to be given an
exemption from the FLSA provisions). Specifically, an
employer seeking to apply an exemption to the FLSA must prove
that the employee and/or employer comes “plainly and

                                19
unmistakably” within the exemption’s terms. Id. (emphasis
added); accord Corning Glass Works v. Brennan, 417 U.S. 188,
196-97 (1974) (holding that an employer has the burden of proof
to show that it falls within the stated exemption).

                               III.
                            Discussion

        We turn to examine in more detail whether the City has
carried its burden to prove that there are no material disputed
facts as to whether FSPs have legal authority and are responsible
for fire suppression activities, as well as whether they are trained
in fire suppression. Both requirements must be satisfied before
the City may decline to pay FSPs the required overtime. As we
noted earlier, if either requirement has not been satisfied, the
FSPs are not exempted.

A.     Legal Framework

1.     Statutory Text

       Under the FLSA overtime provision:

       Except as otherwise provided in this section, no employer
       shall employ any of his employees . . . for a workweek
       longer than forty hours unless such employee receives
       compensation for his employment in excess of the hours
       above specified at a rate not less than one and one-half
       times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1).

       The City argues that the FSPs are exempt from the
overtime provision because they are employees engaged “in fire
protection activities,” id. § 207(k) which, by statutory definition,
includes “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

                                 20
          authority and responsibility to engage in fire
          suppression, and is employed by a fire department of a
          municipality . . . ; 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.

Id. § 203(y). Appellants do not dispute that they fall within the
second prong of the exemption, that is, that they respond to
emergency situations where life is at risk. As we previously
noted, Appellants also do not dispute that they are paramedics
and are employed by a fire department of a municipality. Thus,
the only disputed issues are whether Appellants are: (a) trained
in fire suppression, and (b) have the legal authority and
responsibility to engage in fire suppression, as required by the
first prong of § 203(y)(1).

2.     Legislative History

        Prior to 1999, § 203(y) of the FLSA did not exist. Rather,
two Department of Labor (“DOL”) regulations attempted to
interpret the meaning of “fire protection activities.” First, 29
C.F.R. § 553.210 set forth a four-prong test for determining what
constituted a fire protection activity. A separate regulation, 29
C.F.R. § 553.212, provided additional guidance, stating that even
if an employee fell within the definition of fire protection
activities in § 553.210, s/he might nonetheless fall outside the
scope of the exemption if his/her duties in non-fire related
activities took up more than twenty percent of his/her time. It
appears that the purpose of that section was to account for those
individuals who performed both firefighting and paramedic or
other duties who might technically fall within the definition of
fire protection activities in § 553.210 but who actually spent
most of their time in nonexempt/non-fire activities.

       In 1999, Congress added § 203(y) to the FLSA for the
stated purpose to “clarify the overtime exemption for employees
engaged in fire protection activities.” Fair Labor Standards Act

                                21
– Amendment, Pub. L. No. 106-151, 113 Stat. 1731 (1999). See
also Vela v. City of Houston, 276 F.3d 659, 673-74 (5th Cir.
2001) (discussing the legislative history of § 203(y)). In the
congressional debates accompanying enactment of § 203(y),
Representative Boehner observed that “there [was] a real need to
modernize . . . the Fair Labor Standards Act and to clearly
specify who can be considered a fire protection employee for
purposes of the exemption,” because several lawsuits had
resulted in local governments being liable for substantial back
pay due to courts’ narrow interpretations of the § 207(k)
exemption. 145 Cong. Rec. 28, 520 (1999) (statement of Rep.
Boehner). Representative Boehner noted that in the past, EMS
personnel had fit within the § 207(k) exemption because they
received training, worked schedules and maintained levels of
preparedness similar to that of firefighters. Id. More recently,
however, courts had held that “[EMS] personnel [did] not come
within the exemption because the bulk of their time [was] spent
engaged in nonfire protection activities.” Id. The sponsor of the
amendment, Representative Ehrlich, stated that § 203(y) “seeks
to clarify the definition of a fire protection employee,” which
had been rendered unclear due to recent inconsistent court
interpretations. Id. at 28,521.

        Prior to the enactment of § 203(y), the DOL regulations
had specified that emergency medical services personnel might
be eligible for the firefighter exemption “if they perform duties
that are an integral part of the agency’s fire protection
activities,” but an EMS employee would not be eligible if the
employee spent more than twenty percent of his/her total hours
worked on activities unrelated to fire protection. Id. at 28,520
(statement of Rep. Boehner). The purpose of adding § 203(y),
therefore, was to “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.” Id. (statement of
Rep. Boehner).

      According to the congressional discussion, “[u]nder the
1985 amendments to the Fair Labor Standards Act, the [§

                                22
207(k)] exemption was intended to apply to all firefighters who
perform normal firefighting duties. [The amendment] provides
that where firefighters are cross-trained and are expected to
perform both firefighting and emergency medical services, they
will be treated as firefighters for the purpose of overtime.
However, where emergency medical technicians are not cross-
trained as firefighters, they will remain outside the purview of [§
207(k)]and will be entitled to overtime after 40 hours a week,
even if the emergency medical services are placed within the fire
department.” Id. (statement of Rep. Clay).

        Thus, § 203(y) was intended “to reflect[] the range of
lifesaving activities engaged in by today’s fire service, built
upon its long tradition of responding to all in need of help.
Specifically, today’s firefighter, in addition to fire suppression,
may also be expected to respond to medical emergencies,
hazardous materials events, or even to possible incidents created
by weapons of mass destruction.” Id. at 28,521 (statement of
Rep. Ehrlich). More specifically, § 203(y) was intended to
address the issue of “fire department paramedics trained to fight
fires” who had recently prevailed in civil suits by successfully
arguing that they were not fire protection employees because
they spent more than twenty percent of their time responding to
nonfire emergencies. Id. (statement of Rep. Ehrlich). By
clarifying the § 207(k) exemption with the addition of § 203(y),
Congress hoped to prevent the lack of clarity that had led to
multiple lawsuits against local governments. The amendment
was bi-partisan and uncontroversial; it was supported by labor
and management. Id. at 28,520 (statement of Rep. Boehner).

3.     Judicial Interpretation

        Three courts of appeals have considered the meaning of
“responsibility” for fire suppression activities. In Cleveland v.
City of Los Angeles, 420 F.3d 981, 983 (9th Cir. 2005), the
court held that the fire protection exemption did not apply to 119
employees of the City of Los Angeles who were cross-trained as
firefighters and paramedics. They were “fully trained and
certified in both fire suppression skills and advanced life support
paramedics.” Id. (emphasis in original). They worked platoon

                                 23
schedules similar to those worked by the FSPs in this case, and
were assigned to work on paramedic ambulances. Id. at 984.
The City also employed “single function” paramedics, who
would sometimes be assigned to the same ambulance as a “dual
function paramedic,” but they performed the same work as the
cross-trained “dual function paramedics” while assigned to that
ambulance. Id.

        The paramedic ambulances did not provide fire protection
services (i.e., no hose, no water pumping, etc.), and the
paramedic ambulances were not dispatched to every fire call but
were dispatched only when needed. Id. When dispatched to a
fire scene, the paramedics provided medical care. Id. If there
was no further need for medical care, the incident commander
had “discretion to release the paramedics from the scene . . . .”
Id. In addition, dispatches to fire scenes comprised a very small
amount of the paramedics’ total yearly dispatches. Id.

        The dual function paramedics were permitted to volunteer
to assist firefighters but if they did not volunteer, they were not
subjected to discipline. Id. There was no evidence that any
plaintiff had “been ordered to perform fire suppression by an
incident commander when assigned to a paramedic ambulance.”
Id. All personnel at the fire scene were “expected to wear fire
protection gear,” except the paramedics. Id. The paramedic
ambulances were not equipped with fire suppression breathing
equipment. Id.

       The Ninth Circuit analyzed whether Los Angeles was
bound to pay the paramedics time-and-a-half for overtime by
considering both the DOL regulation at 29 C.F.R. § 553.210 and
the recently enacted § 203(y). Id. at 989.5 The DOL regulation



       5
         Section 203(y) of the FLSA was enacted three months after
plaintiffs filed the complaint. Cleveland, 420 F.3d at 987. Rather
than deciding the question whether § 203(y) applied retroactively,
the court concluded that the relevant term being construed, which
was included in both the regulation and § 203(y), would lead to the
same conclusion. See id. at 988-91. Because the court declined to

                                24
defined an employee engaged in fire suppression activities as
any employee who: (1) was employed by an organized fire
department; (2) had been trained in fire protection; (3) had legal
authority and responsibility to engage in the prevention, control,
or extinguishment of a fire; and (4) performed activities that are
required for and directly concerned with the prevention, control,
or extinguishment of fires. 29 C.F.R. § 553.210(a). As
discussed above, § 203(y) includes a nearly identical prong
requiring that an exempt employee have “legal authority and
responsibility to engage in fire suppression.” 29 U.S.C. §
203(y)(1). The parties agreed that the case turned on whether
the plaintiffs had “responsibility” to engage in fire prevention.
Cleveland, 420 F.3d at 989. The parties did not dispute that the
dual function paramedics were trained in fire protection.

        The Ninth Circuit reasoned that to determine the meaning
of a term in a federal regulation or statute, the starting point is
the plain language of the text itself, i.e., “responsibility.” Id.
The court continued: “To determine the plain meaning of a term
undefined by a statute, resort to a dictionary is permissible.” Id.
(citation and internal quotation marks omitted). The court
considered three dictionary definitions of the term
“responsibility” and noted that “responsible” means “expected or
obliged to account (for something, to someone), answerable,
accountable” and “involving accountability, obligation or
duties.” Id. (quoting Webster’s New World Dictionary, Third
College Edition (1986)). The court further noted that
“responsible” means someone who has been delegated a duty by
someone in authority and “who is subject to penalty in case of
default.” Id.

      Applying those definitions, the court concluded that based
upon the plain language of the statute, the City had not met its
burden of showing that plaintiffs had the “responsibility” to
engage in fire prevention, control, or extinguishment. Id. at 990.



consider the issue of retroactivity, it is not clear that the decision
was properly decided under § 203(y). Nevertheless, the court
clearly construed a portion of that statute.

                                 25
The court reasoned 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.

        The court cited the following six facts in support of its
conclusion that the paramedics did not have the responsibility to
engage in fire suppression: (1) the paramedic ambulances do not
carry fire-fighting equipment or breathing apparatuses; (2) a
dispatcher does not know if he or she is sending single or dual
function paramedics to a call; (3) paramedic ambulances are not
regularly dispatched to fire scenes and are dispatched only when
there is a need for medical services; (4) dual function paramedics
are not expected to wear fire protective gear; (5) dual function
paramedics are dispatched to many different kinds of incidents,
not just fires, to perform medical services; and (6) there was no
evidence that a dual function paramedic was ever ordered to
perform fire suppression. Id. The court did not say it intended
those factors to be exhaustive.

        Finally, the court noted that although Los Angeles argued
that the legislative history of § 203(y) suggested that Congress’
intent was to include dual function paramedics in the exemption,
it was not appropriate to consider legislative history where the
meaning of the statute could be gleaned from its plain language
and common, ordinary usage. Id. at 990 n.11.

        In McGavock v. City of Water Valley, 452 F.3d 423, 424
(5th Cir. 2006), which considered § 203(y), the plaintiff-
appellees were five municipal firefighters employed by the City
of Water Valley, Mississippi. The firefighters had graduated
from the fire academy and were unquestionably trained in, and
had legal responsibility and authority for, fire suppression
activities. Id. They were actually called upon to extinguish fires
on multiple occasions. Id. However, the firefighters also spent
more than twenty percent (for some, as much as fifty percent) of
their time engaged in dispatching duties, rather than actual fire
protection activities. Id. at 424 & n.1. The firefighters sought
overtime, claiming that they did not fall within the § 207(k)
exemption. Id. at 424.

                                26
        The Court of Appeals for the Fifth Circuit decided that §
203(y) supplants and replaces the previous regulations (29
C.F.R. §§ 553.210 and 553.212). Id. at 427-28. Under the
court’s interpretation of § 207(k), therefore, the twenty percent
rule from § 553.212 would no longer apply. Id. at 428. The
court held that under § 203(y)’s definition, the plaintiffs were
engaged in fire protection activities, even though they spent
more than twenty percent of their time doing non-exempt/non
fire tasks. Id. at 427-28. Notably, in McGavock, the plaintiffs
were fully trained firefighters who graduated from the fire
academy and were trained in fire suppression. There was no
dispute that they had the legal authority to engage in fire
suppression and were actually called upon to do so. Id. at 424.

       Following the argument on this appeal, an opinion of the
Court of Appeals for the Eleventh Circuit considered the
question whether a group of firefighter/paramedics employed by
a county fire department was “partially exempt from the normal
forty-hour overtime schedule established by the [FLSA].” Huff
v. DeKalb County, --- F.3d ----, 2008 WL 398799 (11th Cir. Feb.
15, 2008). That court determined that the appellants were
responsible for fire suppression and were therefore not entitled
to additional overtime pay. Of course, that decision is not
binding precedent on this court, but even if it were, it is
distinguishable from the instant case.

        In Huff, the plaintiff-appellants were fully cross-trained
firefighter/paramedics employed by the DeKalb County Fire &
Rescue Services, a fact the dissent overlooks in its emphatic
statement that “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.’” Dis. Op. at 16. There was no
dispute that all of the appellants “were fully trained and certified
in both fire suppression skills and advanced life support.” Id. at
*1.

        Some of the appellants were classified as
“firefighter/paramedics” and some were classified as “fire
medics.” The firefighter/paramedics received National

                                 27
Professional Qualification I (“NPQI”) training, which is a higher
level of training than that necessary to be a firefighter in
Georgia. Id. Their job description stated that one of their duties
was to perform basic firefighting. The fire medics received
NPQII training, which is certification in advanced firefighting (a
higher level of training than NPQI). Their job description stated
that they had to operate apparatus to perform fire control and
suppression, perform firefighting, and inspect fire hydrants and
fire station equipment. All plaintiffs were also responsible for
providing emergency medical care.

        Both the firefighter/paramedics and the fire medics could
be assigned to fire apparatuses, including fire trucks, fire
engines, and fire ladders. Id. at *1. Importantly, fire engines
and other fire apparatuses could be staffed by two
firefighter/paramedics or two fire medics, with no requirement
that any other firefighter also be present. All personnel were
required to wear bunker gear at fire scenes, including air masks
for breathing. At a fire scene, the incident commander assigned
job duties to all personnel; any personnel could be ordered to
perform any job, including extinguishment of fire. Anyone who
failed to follow the orders of the incident commander would be
subject to discipline.

        In light of those facts, the Eleventh Circuit decided that
the appellants were responsible for fire suppression activities.
The court based its decision principally on the fact that all of the
appellants had advanced firefighter training and were required as
part of their job duties to be available to assist with fire
suppression if needed. Id. at *8.

         The case before us is fundamentally different. Here,
there is no dispute that the appellants are not fully cross-trained
or dual function firefighter/paramedics. The FSPs have not
received advanced firefighter training. They are not certified
firefighters. In Huff, all of the appellants were certified
firefighters, and even had training beyond that required for a
firefighter. Moreover, the FSPs are not authorized to staff fire
apparatuses; they staff ambulances. In Huff, the appellants not
only staffed fire apparatuses, but they were permitted to do so

                                 28
without additional firefighter support. Finally, in this case, the
FSPs are called to a fire scene only for the purpose of providing
medical care, whereas in Huff, the firefighter/paramedics and
fire medics were called to the scene and were then assigned to
duties, which could have ranged from fire suppression to
providing medical care.

        Although the two cases share some similar facts, that
must not overshadow the greater overarching distinction
between the two cases, namely, that the plaintiff-appellants in
Huff were without a doubt firefighters who also performed
paramedic duties (and thus should come within the exemption
based upon the statute’s legislative history and purposes),
whereas the plaintiff-appellants in the instant case are not
firefighters at all, but are single function paramedics who happen
to be employed by a fire department (and thus do not come
within the exemption).

4.     DOL Opinion Letter

      In a DOL Opinion Letter dated June 1, 2006, see
Appellants’ Br. Addendum 4, the DOL responded to a
hypothetical question and opined that the dual function
paramedics posed in the hypothetical fell within the § 207(k)
exemption.6 In the hypothetical, the dual function paramedics
were hired as firefighters, were required to attend the full



       6
          “Interpretations such as those in opinion letters--like
interpretations contained in policy statements, agency manuals, and
enforcement guidelines, all of which lack the force of law--do not
warrant Chevron-style deference.” Christensen v. Harris County,
529 U.S. 576, 587 (2000). Instead, the lesser degree of deference
called for by Skidmore v. Swift, 323 U.S. 134 (1944), is
appropriate. The Skidmore rule provides “[t]he weight of [an
agency’s] judgment in a particular case will depend upon the
thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements,
and all those factors which give it power to persuade if lacking
power to control.” Id. at 140.

                                29
seventeen-week firefighter training course, and, unlike the
paramedics in Cleveland, wore fire protection gear and carried
breathing apparatus. Significantly, the hypothetical dual
function paramedics were routinely ordered to perform fire
suppression duties and were ordered to all fire scenes. Thus, the
factual scenario upon which the DOL opinion letter was based
was substantially different from the scenario in Cleveland and
from that before us.

B.     Legal Authority and Responsibility

       Before we can uphold the District Court’s decision that
the FSPs fall within the exemption of the FLSA, we must
determine whether the City met its burden to prove plainly and
unmistakably that the FSPs have legal authority and
responsibility to engage in fire suppression activities, a
prerequisite for finding they are not covered by the overtime
provision of the FLSA. See Corning Glass Works, 417 U.S. at
196-97; Arnold, 361 U.S. at 392. The District Court stated that
“[t]he parties agree that paramedics have only been called upon
infrequently to aid in fire suppression,” but it nonetheless held
that FSPs have such legal authority and responsibility because “it
is beyond dispute that fire service paramedics have, on occasion,
been directed to aid in fire suppression, and when directed have
done so.” Lawrence, 2006 WL 2847330, at *3. We believe
considerable more analysis of the record is required before that
conclusion can be upheld.

        Because we are interpreting a statute, we need to “discern
legislative intent,” considering first the plain meaning of the
statutory text. Morgan v. Gay, 466 F.3d 276, 277 (3d Cir. 2006).
“Plain meaning” means the “ordinary” usage of a term. See
Alaka v. Attorney Gen. of United States, 456 F.3d 88, 104 (3d
Cir. 2006) (citation and internal quotation marks omitted)
(“Perhaps the most fundamental principle of statutory
construction is that words in a statute must be given their
ordinary meaning whenever possible.”). The plain meaning of
the text should be conclusive, except in the rare instance when
the court determines that the plain meaning is ambiguous.
Morgan, 466 F.3d at 278. If so, the court can consider

                               30
legislative history but should do so “with caution.” Id.

       As we discussed above, the Ninth Circuit in Cleveland,
after consulting various dictionaries, 7 stated that “‘responsibility
to engage in fire suppression’” meant that the paramedics must
have “some real obligation or duty,” and it held that Los Angeles
had not met its burden of showing that the paramedics in that
case had the “‘responsibility’ to engage in fire prevention,
control or extinguishment” as required by the DOL regulation
and § 203(y). 420 F.3d at 990-91. We also conclude that the
plain and ordinary meaning of the term legal “responsibility” in
§ 203(y)(1) is unambiguous. In order to be responsible for
something, a person must be required to do it or be subject to
penalty. Cleveland, 420 F.3d at 989 (citing Webster’s New
World Dictionary, Third College Edition (1986)). In other
words, a responsibility is something that is mandatory and
expected to be completed as part of someone’s role or job.

        Applying that definition to the facts in the record, we
cannot sustain the District Court’s holding that the City has
shown that the FSPs have the legal responsibility to engage in
fire suppression. There is substantial evidence to the contrary.
FSPs are not hired to fight fires, not even in small part; indeed,
they are not expected to fight fires as part of their job duties.
The job description makes no mention of fire suppression duties,
but rather is medical in nature. There is no evidence of an FSP
being disciplined for not engaging in fire suppression activities
at a fire scene. There is no evidence that FSPs are ever
dispatched to a fire scene for the purpose of fighting a fire, not
even in situations when a firefighter is unavailable. There is
some evidence that occasionally an incident commander may ask
an FSP to help move a fire hose or that an FSP may volunteer to
assist if s/he is standing by waiting to perform paramedic duties.
Nevertheless, there is no evidence in the record to support the



       7
         This court has also held that it is permissible to use a
dictionary to determine a term’s plain meaning. See Berckeley
Invest. Group, Ltd. v. Colkitt, 259 F.3d 135, 142-43 n.7 (3d Cir.
2001).

                                 31
assertion that the FSPs are expected to engage in fire
suppression as part of their job duties or that they are subject to
penalty if they do not do so. Indeed, FSPs are not even called to
every fire scene, and when they are, their duty, as described in
their job description and Department directive, is to provide
medical care.

        The City has argued that because the Fire Commissioner
stated that FSPs are expected to engage in fire suppression when
ordered to do so by the incident commander, they therefore have
responsibility and authority. That is a non sequitur. An FSP’s
assistance in moving hose line in an emergency situation does
not make the FSP legally responsible for fire suppression. Such
minor assistance is not the “role” or required duty of an FSP, and
therefore does not fall within the plain meaning of the term
“responsibility.” To conclude that an FSP has responsibility for
fire suppression activities principally because the incident
commander theoretically has authority to tell an FSP to do
anything at the scene of a fire would require speculation
regarding an FSP’s responsibility to engage in fire suppression,
which is not permitted on summary judgment. Ridgewood Bd.
of Educ. v. N.E. ex rel M.E., 172 F.3d 238, 252 (3d Cir. 1999).
Theoretical possibilities are not evidence. Congress could have
chosen to make all paramedics subject to the exemption, but it
did not; the plain language of the statute connects the exemption
to fire suppression.

       The mere fact that certain FSPs were required to sign a
statement that provided that they would be responsible for fire
suppression duties does not mean that FSPs have legal authority
and responsibility to engage in fire suppression activities; it
simply means that the Fire Department required them to sign
such a statement in order to retain their jobs. Saying something
does not necessarily make it so. Here, the record evidence does
not support the claim that the FSPs were actually legally
responsible for fire suppression activities.

       Appellants do not argue that the small subset of FSPs that
were at one time firefighters and then crossed over to become
paramedics were not trained in fire suppression, as they clearly

                                32
were when they became firefighters. Rather, Appellants argue
that these cross-over individuals do not currently have
responsibility for fire suppression because their sole job now is
to function as a paramedic. We agree. There is no evidence that
they are dual function paramedics who still operate as
firefighters part of the time.

        Although we conclude that the statutory language is plain,
in an abundance of caution we look to the legislative history
which, on this issue, suggests that Congress intended that true
dual function paramedics, that is, individuals who were no doubt
firefighters but also performed various other functions within a
fire department, would fall within the exemption.8 That may
explain why the language of the exemption covers not only
firefighters but also paramedics, emergency services personnel,
etc. Review of the congressional debates reinforces our
conclusion that § 203(y) was added to clarify that dual function
paramedics are to be exempt from the FLSA overtime provision
and are to be treated as firefighters, whereas paramedics are
entitled to the time-and-a-half overtime pay. Representative
Erlich noted that the definition of a fire protection employee
required clarification because of:

       the range of lifesaving activities engaged in by today’s



       8
         The dissent suggests, erroneously, that our construction of
§ 203(y)(1) will render the second part of § 203(y)(2) superfluous.
A true dual function paramedic and firefighter may be both a
firefighter and paramedic because of his or her training and
experience in both fields. Although s/he would have the authority
to fight fires (as required by § 203(y)(1)), s/he may not be
“engaged” in fighting fires as required by the first part of §
203(y)(2) because the municipality chooses to utilize the
individual in his/her capacity as a paramedic. Nonetheless, a true
dual function firefighter and paramedic fits within the second part
of § 203(y)(2) as s/he will “respon[d] to emergency situations.”
Congress made clear its intent to exempt such individuals, which
can be accomplished only because they fit within both prongs of §
203(y).

                                33
       fire service, built upon its long tradition of responding to
       all in need of help. Specifically, today’s firefighter, in
       addition to fire suppression, may also be expected to
       respond to medical emergencies, hazardous materials
       events, or even to possible incidents created by weapons
       of mass destruction.

145 Cong. Rec. at 28,521. He concluded that:

       [The bill] only affects those who are trained, prepared and
       have the legal authority to engage in fire suppression, but
       also work to save lives in so many other ways.
Id.

       Here, there is no dispute that the FSPs are paramedics
who have some level of fire suppression exposure but who are
by no means firefighters. The evidence shows that they “are not
cross-trained as firefighters,” and therefore, as Representative
Clay stated, they “will remain outside the purview of [§ 207(k)]
and will be entitled to overtime after 40 hours a week, even
[though] the emergency medical services are placed within the
fire department.” Id. at 28,520.

        The decision in Cleveland is not directly analogous to this
case because those plaintiffs were fully trained firefighters,9 but
we consider that opinion because of the similarity of many of the
facts and the issue. FSPs are dispatched to a fire scene only
when it is deemed necessary to have medical personnel on site.
They do report to many other kinds of emergency scenes and, in
fact, fire emergencies make up only .1% of FSP dispatches per
year. Finally, to the extent that some FSPs do have prior training
as firefighters, the dispatcher has no idea which FSPs s/he calls
to report to a fire scene. It cannot fairly be said that the FSPs
have a real obligation to fight fires because it is not what they



       9
        Thus, the fact that the Cleveland plaintiffs did not wear
bunker gear, as the plaintiffs in this case do, is not really an
accurate point of comparison, given that the Cleveland plaintiffs
were fully trained firefighters.

                                34
were hired to do and it is not what they are expected to do as part
of their job duties. Therefore, we conclude that the FSPs do not
have responsibility for fire suppression activities. As such, the
City has failed to meet its burden of proof to show that it falls
within the § 207(k) exemption, and the District Court erred in
granting the City summary judgment.

        Because we have decided that Appellants were not
responsible for fire protection activities as a matter of law, it also
follows that the District Court erred by not entering summary
judgment in their favor. It was the City’s burden to demonstrate
that it met all three requirements necessary to qualify for the
exemption. It is not necessary to reach the question whether
Appellants were “trained” in fire suppression because the City
has failed to meet one of the requirements. We conclude that
FSPs are not exempted from the overtime provision of the
FSLA.
                                IV.
                             Conclusion

        Both parties have agreed that there are no disputed issues
of material fact. Although there may be some dispute in the
margins regarding certain facts pertaining to the authority and
responsibility of the FSPs, those disputes are not material. We
have searched the record conscientiously, but have been unable
to find any general issue of material fact. For the above stated
reasons, we will reverse the judgment of the District Court and
direct the District Court to grant summary judgment on liability
for Appellants.

       The parties agreed at oral argument that if we were to
reverse the District Court’s finding with respect to liability, we
would need to remand to the District Court to make further
findings regarding damages, including the issue whether the City
acted willfully, see 29 U.S.C. § 255(a),10 and the issue whether




       10
           This provision of the FLSA extends the statute of
limitations from two to three years.

                                 35
the City qualifies for a good faith defense, see 29 U.S.C. § 258,11
under the FLSA. It is important to note that if the City can show
that it acted in good faith, it may not be subject to damages for
its past overtime pay practice, as Congress was plainly
concerned with local governments being liable for substantial
back pay awards. We assume that the numerous City amici share
that concern. If the City can prove its entitlement to the FLSA
good faith defense with respect to its past practice, we are
confident that creative City officials can work with the union to
fashion future work schedules compatible with the FLSA.

       Accordingly, we will remand for further proceedings
consistent with this opinion, including those relevant to the
questions of willfulness and good faith with respect to the issue
of damages.




       11
            This provision of the FLSA establishes a good faith
defense for an employee who fails to pay overtime because of, inter
alia, reliance on an administrative practice or agency interpretation.

                                 36
HARDIMAN, Circuit Judge, dissenting.

        The majority holds that Philadelphia’s Fire Service
Paramedics (FSPs) are non-exempt 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

                                37
engagement in fire suppression.” Id. (emphasis in original).
        In 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 31, 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 fireground — such as moving
hose line — is insufficient because it is not the “role” or
“required duty” of an FSP. Id at 32. 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 non-
exempt 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

                                38
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,” “[l]iability,” 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 principal 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



       12
           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.

                                39
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 (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,

                                40
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 “hired to fight
fires” 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. Hodges, 321 F.3d 429, 436 (3d Cir. 2003)
(“[C]anons 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 fire 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

                                41
capacity as a paramedic.” Maj. Op. at 33 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.
        This 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



       13
         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.


                                 42
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



       14
            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 33. 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,” the statute provides
that an employee may fall within the scope of the exemption even
if not a traditional “firefighter.”

                                  43
        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]istorically, 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

                                 44
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 non-controversial 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


       15
           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).
       16
          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 such personnel form an integral part of the public

                                 45
at odds 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
firegrounds. 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 “[w]ork is performed under the


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”).
       17
           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.”

                                 46
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 MacMullan 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.
•       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]ecause 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 “[d]isobeying an order from
       an incident commander under any capacity is subject to
       discipline,” and that he would be obligated to assist a

                                  47
       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 a hose line to a hydrant. Finally,
Plaintiff MacMullan 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




                                 48
rarity with which FSPs are dispatched to fire scenes.18 For one,
there 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


       18
          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 “[w]henever 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 requirement that exempt
employees respond to all or even most incidents.
       19
           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 11. 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.

                                 49
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.
        Finally, 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

                                  50
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 29 (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

                                 51
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 law.” 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).

                                 52
       For all the foregoing reasons, I would affirm the order of the
District Court granting summary judgment to the City of
Philadelphia.




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