Florida Keys News - Key West Citizen
Friday, November 2, 2012
Appeals court: Lawsuit is frivolous

A federal appeals panel in Atlanta Wednesday upheld the decision of U.S. Circuit Judge James King's dismissal of a frivolous wage lawsuit filed by a former Key Largo volunteer firefighter against his department and the fire-EMS district.

In December 2010, former volunteer Corey Freeman sued the department for $22,000 in back pay and overtime under the Fair Labor and Standards Act of 1938 for Freeman's services performed from October 2006 through March 2011. He later added the district to the suit, which contracts with the volunteer department for fire-rescue services.

In the 11th Circuit Court of Appeals' nine-page ruling, Freeman was paid $5 per hour for fuel reimbursement and other expenses. A paid firefighter is paid between $16.83 and $20.04 per hour. As a volunteer, regardless of the amount of hours, Freeman was not allowed to make more than $1,200 a month, the ruling states.

The three-judge panel wrote that Freeman was never hired, which would take a request from the department to the fire district. Since this didn't happen, he cannot be considered an employee and is not protected by the FLSA.

Andy Tobin, a Key Largo attorney who works pro bono for the fire department, calls the decision a victory.

"The whole case is basically frivolous," Tobin said.

But, Tobin says, the litigation is not altogether over. Tobin said the next step is suing Freeman for attorneys' fees. This step was put on hold by King until after the Court of Appeals decision.

Outgoing District Chairman Bill Andersen considers the decision a great going away present. He estimates the total figure spent by the district is as high as $50,000.

"This means we're really off the hook," Andersen said.

Andersen wants the district to go after Freeman for causing such a financial hardship for them.

"This really pisses me off," Andersen said. "These are big bucks for our little district."

Other than Tobin, the fire department and district, hired labor lawyer Dale J. Morgado of the Feldman, Fox and Morgado law firm of Miami, to help defend the case. In February, his expenses had reached more than $25,000.

The only other place Freeman could appeal is the U.S. Supreme Court. Freeman and his attorney, Thomas Woods of Islamorada, did not return a phone call seeking comment.

jgore@keysnews.com

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