Phoenix Captain Claims FLSA Overtime Violation and Retaliation

A captain with the Phoenix Fire Department has filed suit in federal court alleging he was improperly denied 7.25 hours of overtime and then retaliated against for seeking the extra compensation. Captain David Johnson filed suit naming the city and five chief officers for violating FLSA and retaliating against him.

Captain Johnson was assigned to a unit designated as C959, which serves in an EMS supervisory capacity. He explains the factual allegations as follows:

  • As part of C959 Plaintiff would liaison with local Hospital Pre-Hospital Coordinators to mitigate potential issues between Hospital ERs, after hours infectious control officer, replace EMS equipment, Educate on new EMS procedures, new EMS drugs, oversee UCAPIT system for tracking EMS drugs, expiration dates, provided after hours EPCR helpline for other members in the field, liaison with Urgent Care Centers and other facilities that sue “911” system, and answer EMS questions for other PFD members among many other day to day duties.
  • On October 19, 2021, Plaintiff was called out to a blood borne pathogen exposure. A request for source testing was delivered to a local hospital by Car 959W.
  • As part of his job duties, Plaintiff was required to follow up with the testing hospital and the member (person potentially infectious) to attain the results of the bloodwork, and potentially provide next step directives to the member. During this the relevant incident Plaintiff continually followed up with the Hospital from 6:15 p.m. on October 19, 2021, until 7:00 on October 20, 2021.
  • Plaintiff worked for the entire incident and was on call for 12.75 hours without being relieved from duty, per AR 2.21. Plaintiff was only paid overtime for 5.5 hours of this call. The City of Phoenix … failed to properly pay Plaintiff for the overtime hours he worked in violation of FLSA Section 207.
  • Johnson was not paid his proper overtime and stand-by pay and subsequently filed two separate grievances on November 18, 2021, and December 21, 2021, and did not previal, filing an appeal for stand-by pay.
  • On February 18, 2022, in violation of FLSA Section 215(a)(3) Plaintiff was willfully and knowing retaliated against for bringing complaints about lack of overtime and stand-by pay … in which he was abruptly notified of his removal from his captain position on C959—to take effect on March 7, 2022.
  • Plaintiff was to be demoted into a roving pool which is a less desirable position, suffer a loss of statute within the PFD community, and immediately resulted in a 10% reduction in pay rate.
  • Plaintiff filed a grievance on February 22, 2022. A determination was made on July 20, 2022, stating in part that, “Department Management Procedures were not followed regarding the investigative process.”
  • Plaintiff filed a complaint with the Department of Labor (“DOL”), which outlined his claim of retaliation of removal from C959 due to Plaintiff raising issues and filing grievances related to unpaid overtime and stand-by pay.
  • An investigation was conducted by the DOL, during which the PFD claimed that Plaintiff’s removal was both due to “business needs” as well as due to complaints against Plaintiff that existed prior to January 19, 2022. However, upon investigation neither of these reasons could be substantiated.
  • On April 4, 2023, the DOL issued its findings after an extensive investigation and determined that the PFD violated Section 215 of the FLSA stating in that:
    • “The investigation revealed that the FD wrongfully, and without cause, removed Complainant from his position as captain of C959 resulting in relation and violation of section 215(a)(3).”
    • “Specifically, the investigation revealed that Complainant was removed from his position as captain shortly after he filed grievance because he believed he was not paid OT correctly. The grievance was denied, and he was transferred to a roving pool.”

A copy of the complaint is included below. We have our first live-in-person FLSA for Fire Departments program since March of 2020 (COVID) scheduled for February 7-9, 2024 in Georgetown, Texas, hosted by the Georgetown Fire Department. If you have never been to Georgetown’s Public Safety center, it is a wonderful venue. We hope to see you there. Here is the link for more details including hotel information:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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