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McDowell v. Cherry Hill Township

November 21, 2005


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


This matter comes before the Court upon a motion by Defendant Cherry Hill Township for summary judgment against Plaintiff Gary R. McDowell, and cross-motion by Plantiff for summary judgment against Defendant. Plaintiff, the former Operations Coordinator of Cherry Hill Township's emergency medical services, alleges that Cherry Hill Township failed to compensate him for unpaid overtime and unpaid "on-call" time as required by the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA"). The time period at issue is a two and one-half year period beginning March 19, 2001 and ending November 16, 2003. Plaintiff also seeks liquidated damages, attorney's fees and costs pursuant to 29 U.S.C. § 216(b).

The main issue to be decided in the cross-motions is whether Plaintiff is the type of employee entitled to protection under the FLSA - which guarantees that certain types of employees are paid one and one-half times their regular hourly rate for any hours worked in excess of 40 hours per week - or whether Plaintiff is exempt from this requirement of the FLSA. This adjudication, in turn, depends on the determination of whether Plaintiff is properly categorized as an employee employed in either a bona fide "executive" or "administrative" capacity as these types of employees are exempt from the overtime pay provisions of the FLSA. If the Court finds that Plaintiff is not exempt under the FLSA - and thus the type of employee entitled to compensation for overtime hours worked - the Court must then determine whether the time Plaintiff spent "on-call" is compensable under the FLSA.

For the reasons discussed below, this Court finds that no material facts are in dispute and that Defendant has shown that Plaintiff is exempt under the FLSA and not entitled to payment for overtime as a matter of law. Accordingly, Defendant's summary judgment motion will be granted, and Plaintiff's cross-motion for summary judgment will be denied.


Plaintiff, Gary R. McDowell, is a former employee of Cherry Hill Township's (the "Township") emergency medical services squad. (McDowell Decl., Pl.'s Ex. A, ¶ 1.) For nearly 30 years, he worked in a variety of capacities within the Township's emergency medical services squad, beginning in 1974 when he was hired as an emergency medical technician ("EMT") by Cherry Hill Emergency Squad, Inc., ("CHEMS") a non-profit entity that operated independently of the Township. (McDowell Decl. ¶ 3.) In 1978, Plaintiff was promoted to captain whereby he gained responsibility for all of CHEMS' operations. (Id.) Soon after being promoted to captain, CHEMS and the Township's other independently operated emergency medical service squad were incorporated into the Township and made part of the municipal government. (Id. ¶ 4.) At that time, Cherry Hill's emergency medical services squad was divided into two divisions. (Id.) Plaintiff was appointed as department head of one of the two divisions - under the title Chief of EMS - a position he held from 1978 through 1995. (Id. ¶ 5-6, 9.) As Department Head, Plaintiff was responsible for the hiring, firing, and disciplining of employees in his division, purchasing of supplies and all budgeting related to emergency medical services operations among other duties. (Id. ¶ 7.) During this time, Plaintiff was paid on a salary basis and was only rarely compensated for additional or overtime hours worked. (Id. ¶ 11.)

In 1996, CHEMS management was reorganized by the Township and Plaintiff began reporting to William Moffett, Chief of Police for the Cherry Hill Police Department. (Memo from Mayor Susan Bass Levin to EMS Chiefs, 12/24/96, Pl.'s Ex. C.) According to Plaintiff, his "discretionary authority began to [] diminish" between December of 1995 and March of 2001. (McDowell Decl. ¶ 19). In early 2001, the Division of Emergency Medical Services underwent additional reorganization when the Township's governing body adopted an ordinance transferring the Division of Emergency Medical Services under the umbrella of the Cherry Hill Police Department. (Id. ¶ 27.) As such, the two divisions of Cherry Hill emergency medical services were consolidated. (Id.) A new position, titled EMS Director, was created and the person filling the new position would be in charge of the consolidated unit. (Id.) In March of 2001, Cherry Hill Police Lieutenant William Kushina ("Lt. Kushina") was appointed to serve as the EMS Director. (Courier Post article, 3/8/01, Pl.'s Ex. E; Kushina Dep. Tr. 10/27/04 at 8, Def's Ex. I.)

A. Plaintiff's Daily Job Duties under the Reorganized CHEMS

Immediately following the transfer of CHEMS into the Cherry Hill Police Department, neither Plaintiff nor Lt. Kushina had a clear understanding of Plaintiff's job description and day-to-day duties. (McDowell Decl. ¶ 47-48.) During this time, Plaintiff worked closely with Lt. Kushina in order to assist him in managing and supervising the EMTs. (Id. ¶ 46.) According to Plaintiff, Lt. Kushina "leaned heavily" on Plaintiff to "teach him how to run CHEMS." (Id. at ¶ 28.)*fn1 After a short period of time and some discussion between Lt. Kushina and Plaintiff, Plaintiff and Lt. Kushina settled on Plaintiff's title ("Operations Coordinator"), job description and daily duties. (McDowell Depo. Tr. 10/27/04, at 8, Def.'s Ex. H.) As EMS Operations Coordinator, Plaintiff would be responsible for a wide variety of duties including:

- supervising and supporting a staff of 10 full-time and 35 part-time EMTs, setting all EMT work schedules and responding to gaps in EMT schedule coverage due to employee vacations, leaves and unexpected absences from work;

- monitoring Township emergency medical services rules and regulations and emergency medical services standard operating procedures;

- monitoring CHEMS' compliance with the Public Employee Occupational Safety and Health Administration Programs and Occupational Safety and Health Administration Program's safety regulations; - monitoring CHEMS' compliance with Department of Labor regulations and compliance by CHEMS with its EMTs' labor contract;

- monitoring CHEMS' compliance with Department of Health ambulance regulations and ambulance licensing; - assisting in formulating and administering CHEMS' annual operating budget and five-year capital improvement budget; - monitoring CHEMS' supplies and inventory including medical supplies and oxygen; - performing a variety of what Plaintiff has deemed "administrative" functions such as monitoring and auditing patient reports for processing to billing department, collecting and collating EMT patient reports and assisting with record-keeping of patients records, and assisting with the training of EMTs. (Memorandum titled Duties and Responsibilities from McDowell to Lt. Kushina, 3/5/01, Pl's Ex. G; see also McDowell Decl. ¶ 38, 49-54; Letter from New Jersey Dept. of Health and Senior Services, 8/12/02, Def.'s Ex. D; Letter from McDowell to New Jersey Department of Labor's Unemployment Insurance Office, 12/12/03, Def.'s Ex. A.) In addition, Plaintiff was charged with assisting Lt. Kushina in "formulat[ing] CHEMS' long-term goals." (Id. ¶ 54.) Plaintiff considered himself to be "second in command of the [EMS] division," (Letter to New Jersey Department of Labor's Unemployment Insurance Office, 12/12/03, Def.'s Ex. A), and that from 2001 to 2003 he served as "full-time administrator and supervisor of EMS." (Letter from McDowell to Eric Jacobs, 3/11/03, Def.'s Ex. B.) From March, 2001 through March of 2003, Plaintiff's salary was approximately $50,000 per year. (Plaintiff's Material Statement of Facts ¶ 157.)

B. Plaintiff's Duties while On-Call

Soon after his appointment as EMS Director, Lt. Kushina implemented a policy requiring Plaintiff to be "on-call" for 24 hours a day, seven days a week for one-half of each month (i.e. from either the 1st to the 15th of each month or the 16th to the end of the month). (McDowell Decl. ¶ 40-41.) Lt. Kushina served as the supervisor on-call for the half of the month that Plaintiff was not on-call. (Id.) At the beginning of the month, Lt. Kushina and Plaintiff would typically discuss which one of them would be on-call during which part of the month. (Id. ¶ 47.) Kushina and Plaintiff would work out on-call coverage based on their respective vacation plans and availability, or trade on-call shifts. (Id.; see also McDowell Depo. Tr. 10/27/04, Def.'s Ex. G at 172.)

While on-call, Plaintiff was expected to respond to calls from EMTs regarding scheduling issues and equipment failures/ shortages as well as respond to weather-related emergencies and "major disasters." (Id. ¶ 42, 46) The vast majority of work conducted while "on-call" was addressing scheduling issues if an employee called out sick or failed to appear at work. (Id. ¶ 46.) While on-call, Plaintiff could expect to receive a minimum of one call five out of six days, with the weekends bringing a slightly higher call volume (between three and four calls over the weekend). (Id. ¶ 44, 45.) Plaintiff rarely had to physically report to work in response to calls but a typical issue prompting a call - such as an EMT calling out sick and Plaintiff being required to find a replacement worker - could take anywhere from five minutes to two and one-half hours. (McDowell Decl. ¶ 45; McDowell Depo. Tr. 10/27/04, at 169-70.) Plaintiff reports that, while on-call, he watched television, went to restaurants, attended movies and concerts, went shopping, visited relatives, socialized and attended an air show in Pennsylvania. (Id. ¶ 51; see also Ellen McDowell Depo. Tr. 1/11/05, Def.'s Ex. T. at 55; McDowell Depo. Tr. at 167.) Plaintiff states that, while on-call, he was not "free to take an evening off with his wife," to take vacation or travel out of town over the weekend as he was required to "be close enough in proximity to respond to Cherry Hill in the event of a major incident or a weather emergency." (McDowell Decl. at ¶ 48.)

C. CHEMS Undergoes Additional Reorganization

In September of 2003, Lt. Kushina stepped down as EMS Director amid additional reorganization. (McDowell Decl. ¶ 67.) In a memo to CHEMS staff, Lt. Kushina stated that Plaintiff would be the only individual on-call until the transfer of CHEMS to the Cherry Hill Fire District 13 was complete, leaving him as the only individual in an administrative role in CHEMS. (Memo from Lt. Kushina to CHEMS personnel, 9/10/03, Pl.'s Ex. V.) On November 1, 2003, CHEMS was officially transferred to the authority of the Cherry Hill Fire District 13 and all CHEMS employees became employees of the Township. Plaintiff resigned from his position on November 16, 2003. (McDowell Decl. ¶ 72.)

D. Procedural History

Plaintiff filed the present action with this Court on March 19, 2004. Plaintiff's Complaint states that this Court has jurisdiction over this matter under 28 U.S.C. §1331. Defendant Township answered Plaintiff's Complaint on May 10, 2004. Upon the conclusion of discovery, Defendant filed a motion for summary judgment under Federal Rule of Civil Procedure 56(b) on April 26, 2005. Plaintiff opposed Defendant's motion and cross-moved for summary judgment on May 6, 2005. Defendant timely filed opposition to Plaintiff's cross motion on May 20, 2005. This motion is decided without oral argument pursuant to Rule 78, Fed. R. Civ. P.


A. Summary Judgment Standard ...

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