A federal court in Arizona has ruled that a Phoenix Fire Department captain may proceed with his Fair Labor Standards Act retaliation claim arising out of his removal from a specialized unit, but dismissed his claim for additional overtime compensation.

Captain David Johnson was assigned to Car 959, a unit involved in managing firefighter-EMS related pathogen-exposure incidents. In October 2021, Car 959 transitioned from a 56-hour workweek to a 40-hour workweek, reducing the overtime opportunities available to Captain Johnson. Car 959 personnel could sign up for standby shifts, during which they received $1.50 per hour to remain available to deal with exposure incidents. If called to handle an exposure incident, they received overtime pay for the time actually worked.

The dispute that led to the lawsuit arose over when Captain Johnson’s overtime pay stopped after he responded to an exposure.

On October 19, 2021, Captain Johnson was on standby when he was called to manage a pathogen-exposure incident. He drove to a hospital and worked for approximately three hours. After returning home, he made brief telephone calls to the hospital every few hours.

A total of 12.75 hours elapsed between the beginning of the incident and the end of Captain Johnson’s shift. The department paid him overtime for 5.5 hours, covering the hospital visit and the telephone calls, and paid the standby rate for the remaining time.

Captain Johnson filed two grievances contending that once he was called out, the entire 12.75-hour period should have been paid at the overtime rate. Both grievances were denied.

In February 2022, Captain Johnson was informed that he would be removed as the captain of Car 959 and reassigned to Operations, described by the court as a “roving pool.” The stated reason was unprofessional conduct.

While notifying Captain Johnson of the reassignment, Chief Michael Molitor verbally instructed him not to “speak to any strategic partners about [his] removal from C959.” Captain Johnson was later reprimanded for violating that instruction.

Captain Johnson filed another grievance, claiming that his removal from Car 959 was retaliation for filing the overtime grievances. After the grievance and an appeal were unsuccessful, he filed a retaliation complaint with the U.S. Department of Labor.

The Department of Labor concluded that the fire department had “wrongfully, and without cause, removed” Captain Johnson from the Car 959 position because of his overtime grievances. According to the court, the federal investigation found no corroboration for the department’s stated business reasons or the alleged prior complaints about Captain Johnson. It also found that the department had not followed its disciplinary procedures when removing him.

Captain Johnson sued the city under the Fair Labor Standards Act. Here is our earlier coverage of the case. He claimed the city retaliated against him by removing him from Car 959 and reprimanding him for violating Chief Molitor’s instruction. He also sought overtime compensation for the 7.25 hours during the October 2021 standby shift for which he had received only standby pay.

The court rejected the overtime claim, stating as follows:

• An employee’s standby hours are compensable as regular (or overtime) hours when the employee is “engaged to wait,” but not when he is “waiting to be engaged.”
• The difference depends on the parties’ agreement regarding these hours and the outcome of balancing seven factors used to analyze whether the employee is “unable to use the time effectively for his own purposes”-in which case the hours are compensable.
• Those factors are whether there are on-premises living requirements, excessive restrictions on employees’ movements, highly frequent call-ins, restrictive time limits for responses, employees’ ability to easily trade on-call responsibilities, whether pagers or similar technology eases restrictions, and whether the employee actually engaged in personal activities while on call.
• Hours may not be compensable even if the employee does not have “substantially the same flexibility or freedom as he would if not on call.”
• And the standard is relatively employer-friendly; courts have found hours are not compensable even where employees must respond to calls within 15 minutes, remain on call 24 hours per day, respond to calls every 6.5 hours, and remain within the county.
• The parties do not dispute that once a standby employee is called into work, any time spent working is compensable. Johnson and PFD also undisputedly agreed that he would receive standby pay during hours where he “remained available.”
• Johnson only argues that once he was called into work on October 19, he remained engaged for the rest of his shift even when he was not calling the hospital.
• Phoenix disagrees, claiming Johnson was free to conduct his own activities or sleep during the remainder of his on-call hours.
• The Owens factors all weigh in favor of finding Johnson was free to engage in personal activities during the time between calls such that the hours were not compensable.
• Phoenix provides uncontroverted evidence that for the time between calls on standby shifts, there were no on-premises living requirements or geographic restrictions.
• Nor were there specific response-time requirements when Johnson received calls.
• Additionally, Johnson could choose the timing of the few outbound calls he made during that shift.
• In fact, Johnson does not appear to refute Phoenix’s argument that he made the calls voluntarily instead of because Phoenix required them.
• Employees sign up for standby shifts and may trade for on-call shifts, and restrictions are eased by the use of employer-provided cell phones.
• Finally, Johnson does not offer any evidence regarding whether he did in fact engage in personal activities during this time. The only relevant evidence either party cites is Molitor’s December 2021 denial of Johnson’s overtime grievance, which states Johnson “went to bed” after returning from the hospital.
• There is no indication how Molitor came to that conclusion. But a moving defendant in summary judgment may shift the burden of producing evidence to the nonmovant merely by pointing the court to an “absence of evidence” for the plaintiff’s claim.
• Phoenix has pointed to an absence of evidence, and Johnson has not met his corresponding burden to show any evidence exists.
• He cites a dissent from a decision denying his overtime grievance, but it states only the legal conclusion that Johnson should be compensated at overtime rates because he was available to work.
• He also cites his declaration, but it is silent regarding what he was doing (or could have been doing) during the hours between phone calls apart from the generalization that he “handled or was available for other” (unidentified) “C959 issues and responsibilities.”
• Johnson nowhere even mentions the Owens factors, let alone analyzing how they apply to the facts here. Courts have established that merely being available for work like this, and otherwise free to conduct personal activities, generally corresponds with waiting to be engaged.
• Accordingly, Phoenix’s motion for summary judgment as to Count 3 regarding overtime compensation is granted.

Captain Johnson’s retaliation claim produced a different result.

The city argued that Captain Johnson suffered no harm because the Operations assignment provided more overtime opportunities than the 40-hour Car 959 schedule. Captain Johnson claimed that although he could work more overtime after the transfer, his overtime rate dropped from $56.04 per hour to $50.83 per hour. He calculated the difference at $6,875.25 for the period from March 20, 2022, through April 30, 2023.

The court concluded that the opportunity to work additional overtime hours did not necessarily eliminate the harm caused by receiving a lower rate of pay for each overtime hour worked. Captain Johnson’s damages would have to account for what he actually earned after leaving Car 959, as well as what he could have earned in available positions with schedules and pay structures similar to Car 959. Nevertheless, the evidence was sufficient to create a factual dispute over whether he sustained some monetary loss.

The court rejected Captain Johnson’s claim for emotional-distress damages because he did not submit sufficient evidence from which a jury could calculate those damages. His disclosure referred generally to lost career opportunities, reputational harm, and medical and emotional-health issues, but the court found those assertions too conclusory.

Captain Johnson withdrew the retaliation claim based on the reprimand for violating Chief Molitor’s instruction. The court dismissed that claim and entered judgment for the city on the overtime claim.

Captain Johnson’s FLSA retaliation claim based on his removal from Car 959 remains, limited to his claim for monetary loss and any other relief the court determines is available if he establishes retaliation.