Opposition Brief — Gonzalez v. City of Deerfield Beach (No. 08-1379)

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No. 08-1379 JUL 7- 2009

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

ARNIE GONZALEZ,

AND ALL OTHERS SIMILARLY SITUATED,

Petitioners,

CITY OF DEERFIELD BEACH, FLORIDA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

“

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STUART R. MICHELSON

Counsel of Record

KIMBERLY A. KISSLAN

JASON H. COFFMAN, Of Counsel

LAW OFFICE OF STUART R. MICHELSON

800 Southeast Third Avenue

Fourth Floor

Fort Lauderdale, FL 33316

(954) 463-6100

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether Petitioners have presented compelling

reasons for the Court to grant the Petition for Writ of

Certiorari where the Eleventh Circuit’s opinion is

consistent with every court of appeals decision

involving similar facts and the Eleventh Circuit

affirmed the District Court’s determination that,

based on the factual record before it, all of the

Petitioners were exempt within the meaning of the

Fair Labor Standards Act, 29 U.S.C. § 203(y) because

Petitioners had been trained in fire suppression,

could be required to engage in fire suppression or face

disciplinary action, and had the responsibility to

engage in fire suppression.

TABLE OF CONTENTS

Page

SUMMER REPEY E PRESIGIN LEDD)..............00cccccscscecssccesces i

ME WALT CROC DEEE © LISD ........2....0ccccccccccescescess lil

STATEMENT OF THE CASE.......................2200000- 1

REASONS FOR DENYING THE PETITION ..... 1

I. Distinct Facts, Not Lega! Interpretation,

Are the Reasons for Different Results ...... 2

A. There Is Not a Split in Court of Appeals

ccc cussovychsvnnsieweres Aa ett Chee 3

B. The Issue of Overtime Compensation

Under the FLSA Has Always Been a

PES BPOCIIC INGUITY ..............00.c00secereeess 4

C. The Facts of Lawrence and Cleveland

Cases Contrast with the Gonzalez Case

Which Resuited in Different Conciu-

D. The Opinion Does Not Conflict with

Decisions of Every Other United States

ME OE PAIIIOEIG ......0.000.0scccnccccsscncsescees 8

Il. Review Is Not Warranted to Resolve Con-

flict as There Is No Conflict and the

Court Below Correctly Relied on the

Facts of the Case and the Rules of

Statutory Interpretation ........................... 11

arcs ssdanvesassnnecevanesoveenevernade 14

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TABLE OF AUTHORITIES

Page

CASES

Cleveland v. City of Los Angeles, 420 F.3d 981

(9th Cir. 2005), cert. denied, 546 U.S. 1176

IR soc xnncoaveeccdcnckcyeorcwuver onsets a ee ee passim

Conn. Natl Bank v. Germain, 503 U.S. 249

OPE iis vicdscescatiasis ean neared aaa en ee 12

Gonzalez v. City of Deerfield Beac i, 549 F.3d

Eee eC eee es SR ciceticsocicsacsdcapsimunicsueernes passim

Huff v. DeKalb County, 516 F.3d 1273 (11th

ei bos tuc ccc eavapen co eeenssasek eae 2, 3, 4, 10, 13

Kelly v. Robinson, 479 U.S. 36 (1986)..............ccceec eens 12

Lawrence v. City of Philadelphia, 527 F.3d 299

(3d Cir. 2008), cert. denied, 129 S. Ct. 763

CS Bseesacoe nes as acee teeth unis cuaececpeiea ny enee passim

McGavock v. City of Water Valley, 452 F.3d 423

bon gk dy.) SUR AAPe ine netneprenr fale tren itey aacceeee 3,9, 10

Overstreet v. North Shore Corp., 318 U.S. 125

EF IE RE OE A cnn SARA DTA 2 Sine ANN pct eg nine O 5

Perrin v. United States, 444 U.S. 37 (1979)......00....... 12

STATUTES

Oe. DB, SO 0) AG, Gee eesaewsycatenineeenses 3,9, 10, 12, 13

STATEMENT OF THE CASE

Petitioners failed to mention one of the most

crucial facts in the record below:

It is true that there are many similarities

between the Cleveland plaintiffs’ jobs and

the jobs of the plaintiffs here; but the most

important factor present in Huff — and

present here — was absent in Cleveland:

there, unlike here, the plaintiffs could not be

ordered to engage in fire suppression; they

could volunteer to assist firefighters at a fire

scene, but they were not required to do so

and were not subject to discipline for failing

to do so. (Emphasis in original).

Pet. App. 9a.

REASONS FOR DENYING THE PETITION

Petitioners presented no compelling reasons for

their Petition for a Writ of Certiorari to be granted.

Specifically, Petitioners failed to demonstrate that the

Kleventh Circuit's November 24, 2008 Opinion

(“Opinion”) is in conflict with either a decision of this

Court or that of any Court of Appeals. As discussed in

detail below, there is no conflict between the Opinion

and any other Court of Appeals. Accordingly, there is

no reason for review by this Court. The Opinion

correctly applied the Fair Labor Standards Act

(“FLSA”) to the facts of this case.

I. Distinct Facts, Not Legal Interpretation,

Are the Reasons for Different Results.

Every court which has addressed this issue has

interpreted the word “responsibility” in the exact

same manner. Huff v. DeKalb County, 516 F.3d 1273,

1279 (llth Cir. 2008); Gonzalez v. City of Deerfield

Beach, 549 F.3d 1331, 1334 (11th Cir. 2008); Lawrence

v. City of Philadelphia, 527 F.3d 299, 312-14 (3d Cir.

2008), cert. denied, 129 S. Ct. 763 (2008); Cleveland uv.

City of Los Angeles, 420 F.3d 981, 989 (9th Cir. 2005),

cert. denied, 546 U.S. 1176 (2006). All the courts have

noted that the responsibility requirement of the

statute means that the plaintiffs must “have some

real obligation or duty” to engage in fire suppression.

Huff, 516 F.3d at 1279; Gonzalez, 549 F.3d at 1334;

Lawrence, 527 F.3d at 314; Cleveland, 420 F.3d at

989. The cases reach different results due to the fact

that some EMTs/fire fighters could be required to

fight fires if ordered to do so, and some could not.

Huff, 516 F.3d at 1275; Gonzalez, 549 F.3d at 1335;

Lawrence, 527 F.3d at 307; Cleveland, 420 F.3d at

984. All the courts that have addressed the issue

have applied the common every day meaning of the

word “responsibility.” Huff, 516 F.3d at 1279;

Gonzalez, 549 F.3d at 1334; Lawrence, 527 F.3d at

314; Cleveland, 420 F.3d at 989. As the various circuit

courts have noted, there have been varying results

due to varying facts. See Huff, 516 F.3d at 1279;

Gonzalez, 549 F.3d at 1334-36; Lawrence, 527 F.3d at

314-16; Cleveland, 420 F.3d at 990. That is to be

expected and does not lead to the necessity of review

by this Court. If it did, this Court would be forever

bogged down in factual disputes instead of legal

conflicts between the circuits. Not one Court of

Appeals has determined itself to be in conflict with

any other court on this issue.

A. There Is Not a Split in Court of

Appeals Decisions.

Respondent concedes that upon first reviewing

the cases, it might appear that there is a conflict

between Lawrence and Cleveland, on the one hand,

and Huff and Gonzalez, on the other hand. This is

because in Lawrence and Cleveland, the fire fighters

prevailed, but in Huff and Gonzalez, as well as in

McGavock v. City of Water Valley, 452 F.3d 423 (5th

Cir. 2006), the municipalities prevailed. However,

upon studied analysis, and considering the different

facts in the respective cases, it becomes clear that

there is no conflict in these cases. The fire fighters

prevailed in Lawrence and Cleveland not because

those courts had a different view of § 203(y) than did

the courts in Gonzalez or Huff. Rather, the courts in

those cases where the fire fighters prevailed were

dealing with facts which included EMTs and

paramedics which were never called upon or expected

to fight fires and would not be disciplined for refusing

to fight fires. Lawrence, 527 F.3d at 307; Cleveland,

420 F.3d at 984. In contrast, the paramedics and

EMTs in Gonzalez and Huff had training in fire

suppression, could be called upon to engage in fire

suppression, and could be disciplined if they refused

to engage in fire suppression. Huff, 516 F.3d at 1275;

Gonzalez, 549 F.3d at 1335. Due to these divergent

facts, the Gonzalez and Huff cases were decided one

way, and Cleveland and Lawrence another.

The common factors in Gonzalez and Huff are

that (1) the paramedics and EMTs had training in fire

suppression, (2) were certified fire fighters that could

be called upon to engage in fire suppression, and (3)

could be disciplined if they refused to engage in fire

suppression. In both Lawrence and Cleveland, the

reputed conflicting cases, not only were the para-

medics and EMTs not called upon or expected to fight

fires, but they could not be disciplined for doing so.

Lawrence and Cleveland have disparate fact patterns

from the case at issue and the other Court of Appeals

decisions.

Simply stated, there is no split in the circuits.

Rather, the courts have obtained different results due

to the different facts presented in the several cases.

There is not a single decision where another circuit

court actually conflicted with the Opinion of «he

Eleventh Circuit below. There its no need to grant

Certiorari.

B. The Issue of Overtime Compensation

Under the FLSA Has Always Been a

Fact Specific Inquiry.

Determining who is required to be paid overtime

and who may be exempted under any of the many

exemptions contained in the FLSA is, and has always

been, a fact specific inquiry. Overstreet v. North Shore

Corp., 318 U.S. 125, 132-33 (1945). When the specific

facts of each of the cases mentioned by Petitioners as

being in conflict are examined, it becomes apparent

that each of the cases is factually unique and that

there is no conflict. The opinions cited by Petitioners

are in harmony when one looks at the underlying

facts of the individual cases.

C. The Facts of the Lawrence and

Cleveland Cases Contrast with the

Gonzalez Case Which Resulted in

Different Conclusions.

Petitioners erroneously claim that the Opinion

conflicts with the decisions of Lawrence and Cleve-

land. Petitioners’ various errors begin on page 3 of

their Petition, wherein Petitioners state that the

action against the City of Deerfield Beach was filed in

the District Court for the Southern District of Florida

in 1996. In fact, Petitioner Gonzalez filed this action

against the Respondent, the City of Deerfield Beach,

on September 1, 2006. Pet. App. 12a. Though Peti-

tioners were oif by 10 years, this is the most inconse-

quential error of Petitioners’. What is more important

is that Petitioners fail to acknowledge that there are

dispositive facts present in this case which were ab-

sent in both Cleveland and Lawrence. A brief review

of those decisions is instructive.

In Cleveland, the Plaintiffs could not be ordered

to engage in fire suppression. Cleveland, 420 F.3d at

984. They could volunteer to assist fire fighters at a

fire scene, but they were not required to do so and

were not subject to discipline for failing to do so. /d.

Similarly, the facts in Lawrence were funda-

mentally different from the facts in this case. Not all

of the Plaintiffs in Lawrence were certified fire fight-

ers. As the Court of Appeals in Lawrence noted:

“There is no dispute that the Appellants are

not fully cross-trained or dual function fire

fighters/paramedics. The FSPs have not

received advanced fire fighter training. They

are not certified fire fighters.” Jd. at 315.

Furthermore, in Lawrence, there was no evidence

that any of the plaintiffs could be penalized for

refusing to fight a fire. Jd. at 317. As the Court of

Appeals stated in Lawrence:

“There is no evidence in the record to support

the 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.” Jd. at 317.

In Lawrence, the City was unable to cite a single

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. /d. at 306. The Lawrence Court

noted that the City contended that there was no

record evidence of any formal reprimand of FSPs for

performing fire suppression duties. /d. at 307.

(Emphasis added).

Contrasting the Lawrence facts with this case, all

Plaintiffs are trained and certified as fire fighters.

Pet. App. 3a. Moreover, Plaintiffs admitted that they

would be subject to significant discipline if they

refused to obey an order to engage in fire suppression.

Pet. App. 3a. Indeed, it was undisputed in the record

below that when a commanding officer ordered any of

the Plaintiffs to engage in fire suppression, that the

Plaintiffs had the responsibility to do that or face

discipline upon failure to follow such an order. Pet.

App. 14a. The completely dissimilar facts in the

Opinion versus those in Lawrence resulted in rulings

in each case that are applicable to the unique facts of

each case. The interpretation of the FLSA was con-

sistent and there is no conflict between the two cases.

None of the courts pronounced an interpretation of

§ 203(y) that conflicts with a pronouncement of any

other.

In Lawrence, the City contended that there was

no record evidence of any formal reprimand of FSPs

for performing fire suppression duties. /d. at 307.

There was additional evidence in Lawrence that if

any officer ordered an FSP to assist with fire sup-

pression efforts, the officer, not the employee, would

have been subject to discipline. /d.

There was only limited evidence in Lawrence that

there had been any incidents of FSPs helping fire

fighters at a fire scene. It was all voluntary. This type

of “voluntary assistance” is known as “freelancing.”

Id. The record establishes that the department did

not encourage freelancing. Jd. It is unclear whether

the “freelancing” was prohibited by the fire depart-

ment. “There is some evidence that freelancing was

against the standing rules of the department and was

not condoned.” /d. Most importantly, there is no

evidence of an FSP being disciplined for not engaging

in fire suppression activities at a fire scene. /d. at

317.

Lawrence and Gonzalez presented the respective

courts with vastly different operative facts. On the

face of the cases different results seem to have been

reached; however, an examination of the cases reveals

that the different outcomes are based on different

facts and that the cases do not conflict in their

interpretation of the FLSA. Similarly, the facts in

Cleveland are drastically different from those in the

Opinion. It is the distinct facts, not a disagreement or

conflict of law, that led to the disparate results in the

two cases.

D. The Opinion Does Not Conflict with

Decisions of Every Other United States

Court of Appeals.

Another error made by Petitioners is their

contention, made in their Petition for Rehearing En

Banc and repeated here, (Petition, p. 5-6) that “this

proceeding presents a question of exceptional impor-

tance because ‘it involves an issue on which the panel

decision conflicts with the authoritative decisions of

every other United States Court of Appeals that has

addressed the issue.’” (Emphasis added). This state-

ment is simply not true. The United States Court of

Appeals for the Fifth Circuit issued an opinion which

addressed this issue in McGavock. McGavock, a case

ignored by the Petitioners, is not in conflict with the

Opinion.

McGavock and the Opinion reach identical

results — a decision in favor of the municipalities and

against the fire fighters and EMTs. Yet Petitioners

claim the Opinion is in conflict with the decision of

“every other United States Court of Appeals that has

addressed the issue.” Petitioners have clearly mis-

stated the situation. The Fifth Circuit in McGavock

ruled against the employee plaintiffs and in favor of

the City, finding that the plaintiffs were employees

“engaged in fire protection activities” and thereby

exempt from the coverage of the overtime provisions

of the FLSA. The McGavock court found, just as did

the court below, that the plaintiffs had the legal

authority to engage in fire suppression and were

actually called upon to extinguish, control and pre-

vent fires and to respond to emergency situations

where life, property or the environment were at risk,

even though fire fighters spent more than 20% of

their workweek engaged in dispatching duties, as

opposed to actual fire protection activities. Clearly,

McGavock is another case that has addressed

§ 203(y), which is not in conflict with the Opinion.

Respondent cannot explain why Petitioners failed to

advise the Court of this plainly relevant authority.

The fire fighter cases involving the FLSA are not

in conflict. The courts finding, based on the facts, that

their respective plaintiffs had the responsibility to

engage in fire fighting activity ruled that plaintiffs

were exempt pursuant to § 203(y). Those cases

wherein the plaintiffs did not have the responsibility

to engage in fire fighting activity, such as Cleveland

and Lawrence, were decided the other way. Thus, the

FLSA exemption has been applied consistently across

the circuits. The Ninth and Third Circuits simply

considered plaintiffs that did not fight fires, were not

allowed to fight fires, could not be disciplined for not

fighting fires, and thus were not exempt from FLSA.

The McGavock court did note that the Plaintiffs

were all engaged in fire fighting activity, though some

of the plaintiffs spent more than 20% of their work-

week engaged in dispatching duties as opposed to

actual fire protection activities. McGavock, 452 F.3d

at 424. Huff, Gonzalez and McGavock all differ

factually from Lawrence because, in Lawrence, the

court found that the plaintiffs not only were never

expected or called upon to perform any fire suppres-

sion duties, but that if an officer ordered an FSP to

assist with fire suppressant efforts the officer could

be disciplined. Lawrence, 527 F.3d at 307.

In Cleveland, the court found that some of the

plaintiffs were single function paramedics that were

not even trained in fire protection and that even the

cross trained fire fighter paramedics in that case did

not carry firefighting equipment, and were expected

to perform only medica! services. In Cleveland, the

court found that the plaintiffs had no real obligation

or duty to fight fires. Unlike Lawrence and Cleveland,

the Plaintiffs below could be ordered to engage in fire

suppression and could be disciplined for failing to

follow such an order. Pet. App. 9a. Accordingly, the

lower courts are remarkably consistent with their

interpretations and application of the exemption. If

an individual has the responsibility to engage in fire

suppression, he or she is exempt. If not, he or she is

not exempt.

The question presented does not require the

attention of this Court. The Petitioners attempt to

create a scenario wherein there are conflicts among

the circuits by focusing on different results while ig-

noring the different facts. Petitioners do not address

the issue of different fact patterns which have re-

sulted in different rulings. Factual distinctions do not

merit this Court’s attention.

II. Review Is Not Warranted to Resolve

Conflict as There Is No Conflict and the

Court Below Correctly Relied on the

Facts of the Case and the Rules of

Statutory Interpretation.

The decision of the Eleventh Circuit in Gonzalez

is consistent with the precedent regarding the

interpretation of statutes. The Court of Appeals

properly followed the relevant decisions of this Court

on statutory interpretation. Interpretation of the

meaning of statutes always starts with the words of

the law itself. Kelly v. Robinson, 479 U.S. 36, 43

(1986). There is no definition of the word “respon-

sibility” in § 203(y). A fundamental principle of statu-

tory construction is that if a word is not defined, the

word will be interpreted as having its ordinary,

common meaning. Perrin v. United States, 444 US.

37, 42 (1979).

[CJanons of construction are no more than

rules of thumb that help courts determine

the meaning of legislation, and in inter-

preting a statute a court should always turn

first to one, cardinal canon before all others

. courts must presume that a legislature

says in a statute what it means and means

in a statute what it says there. ... When the

words of a statute are unambiguous, then,

this first canon is also the last: “judicial

inquiry is complete.”

Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54

(1992) (citations omitted).

Using the ordinary dictionary meaning of the

word “responsibility,” the Court of Appeals in Gon-

zalez determined that, based on the facts, the District

Court properly concluded that the City met its burden

of showing that the Plaintiffs had the responsibility

to engage in fire suppression. Whereas §$ 203(y) can

be read using the ordinary and common meaning of

the words contained in the statute, there is no reason

to go beyond the regular “plain language” definition

of the word “responsibility” in the statute.

We further held that the ordinary meaning of

the term “responsibility” “does not imply any

actual engagement in fire suppression,” and

that “employees may have a ‘responsibility to

engage in fire suppression’ without ever

actually engaging in fire suppression them-

selves.” ... This cesponsibility, we further

explained, is a forward looking, affirmative

duty or obligation that an employee may

have at some point in the future.

Gonzalez, 549 F.3d at 1334 (citing Huff, 516 F.3d at

1281).

Since the court below relied on the ordinary

meaning of the term “responsibility,” the Eleventh

Circuit Opinion obeyed the canons of construction

laid down by this Court. Both the Eleventh Circuit’s

interpretation of the facts and the statutory exemp-

tion are consistent with this Court’s prior guidance.

There is no need to grant certiorari. There is not a

single case of conflict with regard to § 203(y).

CONCLUSION

For the foregoing reasons, the Petition for a Writ

of Certiorari should be denied.

Respectfully submiited,

STUART R. MICHELSO)!