Lawrence v. City of Philadelphia, Pa.

OPINION OF THE COURT

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 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 *303Court 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. Ovemew of FLSA Framework

The FLSA states that, unless otherwise provided in the FLSA, an employer may not allow its employee to work for 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 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 re*304cruited 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 “demoting] 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 “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 (emphasis added).3 The job description for an FSP *305states 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 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 Hair-ston 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 declaration. In addition, during the first week of their training program, FSPs receive the FSP Code of Con*306duct, 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 fire-grounds. 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.

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 *307duty is to provide medical care. Comer-ford 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 Comer-ford, 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 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 fire-ground, 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 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. Cart-agena 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. *308Another 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.

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 fire-ground 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 for Firefighter.”

According to the Cadet Guide Booklet for the 22nd FSP paramedic class, there are nine “skills evolutions,” or job stan*309dards, 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 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/prehospital 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 *310fire 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.

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. Mountain 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 105 S.Ct. 1953, 85 L.Ed.2d 278 (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, 101 S.Ct. 1437, 67 L.Ed.2d 641 (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, 80 S.Ct. 453, 4 L.Ed.2d 393 (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 unmistakably ” within the exemption’s terms. Id. (emphasis added); accord Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (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 re*311quirements 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 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—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 Boeh-ner 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 *312several 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 [§ 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 *313suppression 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 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 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., *314“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. 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.

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 *315firefighters 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, 516 F.3d 1273 (11th Cir.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 329. 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 1274.

Some of the appellants were classified as “firefighter/paramedics” and some were classified as “fire medics.” The firefighter/paramedics received National 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 1274-75. 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 1282.

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 *316staff ambulances. In Huff, the appellants not only staffed fire apparatuses, but they were permitted to do so 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 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, 94 S.Ct. 2223; Arnold, 361 U.S. at 392, 80 S.Ct. 453. 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 *317statutory 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 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 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 sequi-tur. 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 *318for 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 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 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.

*319145 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 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 FLSA.

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. *320§ 255(a),10 and the issue whether 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.