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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2009

## Text

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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,

V.

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.

ll

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

il]

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

1

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.

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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.

10

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

11

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

12

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

13

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).

¢

14

CONCLUSION

For the foregoing reasons, the Petition for a Writ
of Certiorari should be denied.

Respectfully submiited,

STUART R. MICHELSO)!
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
July 2009

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0497%3A2. Public record. Not legal advice.