968 F.2d 606 (6th Cir. 1992), 91-3807, Martin v. Ohio Turnpike Com'n

Docket Nº:91-3807, 91-3838.
Citation:968 F.2d 606
Party Name:Marshall MARTIN, Jr., On Behalf of Himself and all other Employees of the Ohio Turnpike Commission similarly situated, et al., Plaintiffs-Appellants, v. OHIO TURNPIKE COMMISSION, Defendant-Appellee.
Case Date:July 07, 1992
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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968 F.2d 606 (6th Cir. 1992)

Marshall MARTIN, Jr., On Behalf of Himself and all other

Employees of the Ohio Turnpike Commission

similarly situated, et al., Plaintiffs-Appellants,



Nos. 91-3807, 91-3838.

United States Court of Appeals, Sixth Circuit

July 7, 1992

Cause Argued May 8, 1992.

Rehearing and Rehearing En Banc

Denied Aug. 20, 1992.

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Michael J. Spetrino, David H. Shaffer (argued and briefed), Joondeph & Shaffer, Akron, Ohio, for plaintiffs-appellants.

Maria J. Codinach (briefed), Ronald J. James (argued), Kimberly A. Fatica, Anne C. Morgan, Squire, Sanders & Dempsey, Cleveland, Ohio, for defendant-appellee.

Before: GUY and BOGGS, Circuit Judges; and RONEY, Senior Circuit Judge [*].


The plaintiffs, a group of highway maintenance workers, brought this action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., to obtain overtime compensation for time that they were "on call" while away from the worksite. The district court granted summary judgment to the defendant employer. We affirm.


The plaintiffs are 125 highway maintenance workers employed by the defendant, the Ohio Turnpike Commission (Turnpike). The Turnpike employs approximately 300 maintenance workers, each assigned to one of eight maintenance buildings situated along the highway. Each employee works an eight-hour shift five days a week. The shift starts at 8:00 a.m during the winter and 7:00 a.m. during the summer.

The Turnpike requires the employees to work overtime as needed and pays one and one-half times the regular hourly rate for overtime work. The Turnpike schedules much of the overtime work in advance. Unscheduled overtime work becomes necessary when an emergency, such as an accident or severe weather, occurs after normal working hours.

Before 1986, employees could exempt themselves from unscheduled overtime work. Under a new collective bargaining agreement that went into effect in 1986, the Turnpike required employees to perform unscheduled overtime work when called. Employees could excuse themselves from unscheduled overtime only by taking a vacation day or by obtaining permission from the foreman in advance. The parties disagree as to whether the foremen readily granted such permission.

The Turnpike developed a procedure for summoning workers for emergency overtime work. The Turnpike divided workers into two crews. One crew would be "on" and the other crew would be "off" at all times. 1 When an emergency occurred, the foreman would determine how many workers were needed. The custodian would then call employees from the "on" crew, beginning with the employee who had worked the least number of overtime hours to date. The custodian would summon employees from the "off" crew only if the "on" crew could not provide sufficient manpower.

The custodian would attempt to call each employee three times at five-minute intervals. If the employee answered the call, the custodian would ask the employee to leave for work immediately. If an employee failed to answer by the third attempt or refused to report, the custodian would call the next name on the roster.

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Employees could take certain steps to reduce the chances of missing a call for emergency work. First, an employee could call the Turnpike collect and leave a number where he or she could be reached. Second, if someone remained at the employee's home, the employee could tell that person how to contact him or her in the event of an emergency. Third, an employee could call the foreman and ask whether he or she was likely to be needed for emergency work that night. Fourth, an employee could consult the overtime roster and the "on" and "off" rotation schedule to determine whether he or she would be among the first to be called in the event of an emergency. Fifth, the employee could carry an electronic pager. 2

If an employee was in the "on" crew and failed to answer a call or refused to report, he or she would be subject to discipline. The Turnpike did not take disciplinary action against any employees in the "off" crew who failed to answer a call. Two instances of discipline within one year would result in a written reprimand. The third and fourth occurrences would lead to suspensions, and a fifth would result in termination. From 1986 to 1989, the Turnpike took disciplinary action 69 times but apparently did not terminate any employees under the policy.

When an employee performed unscheduled overtime work, he or she received overtime compensation for travel time to and from the Turnpike as well as for the time actually worked. The Turnpike did not compensate employees, however, for time spent "on call" away from the Turnpike.

Fourteen of the plaintiffs filed this action in June 1987 for overtime compensation for time spent on call. The district court ordered the plaintiffs to issue an "opt-in" notice, pursuant to 29 U.S.C. § 216(b), to notify other Turnpike employees of the action. Over 100 employees responded to the notice, and an amended complaint was filed to add the new plaintiffs. In August 1988, the plaintiffs filed a second amended complaint, adding a claim for compensation for time spent on call during lunch breaks taken on the Turnpike's property (the "lunch period" claim).

Five months later, the Turnpike moved for partial summary judgment against the plaintiffs' first claim. The Turnpike filed a notice in May 1989 limiting the summary judgment motion to the period before March 11, 1989, the date a new collective bargaining agreement went into effect.

The district court granted the Turnpike's motion for partial summary judgment in September 1990. In March 1991, the plaintiffs moved for reconsideration and for a clarification of whether the partial summary judgment order was limited to the period before March 11, 1989. The court denied the plaintiffs' motions for reconsideration and clarification and explained that it had granted summary judgment against the first count "in its entirety."

In August 1991, the plaintiffs voluntarily dismissed the "lunch period" claim. The district court then entered an order certifying the grant of partial summary judgment as a final order. This appeal followed. 3


Summary judgment is appropriate if, after an opportunity for discovery, the moving party demonstrates that there is no genuine issue of material fact as to the existence of an element essential to the non-moving party's case and on which the non-moving party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once the moving party carries its initial burden of showing that no genuine issues of material fact are in dispute, the burden shifts to the non-moving

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party to come forward with specific facts to show that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id. When determining whether there is a genuine issue of material fact, a court must view the evidence in the light most favorable to the non-moving party. Id. at 255, 106 S.Ct. at 2513. We review the district court's grant of summary judgment de novo. EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990).


We begin our analysis by examining the law applicable to the plaintiffs' claim. The Fair Labor Standards Act (FLSA) provides that employees must be compensated at one and one-half times their regular rate for overtime work. 29 U.S.C. § 207(a). Although the FLSA does not state whether time spent on call is working time, the Supreme Court has held that, under some circumstances, waiting time is compensable. Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944); Skidmore v. Swift & Co., 323 U.S. 134, 136, 65 S.Ct. 161, 162, 89 L.Ed. 124 (1944).

In both Armour and Skidmore, the plaintiffs were private firefighters hired to work at the defendants' factories. In both cases, the plaintiffs worked regular hours, but were required to spend approximately half of their "time off" in the company dormitories so that they could respond quickly to alarms. In Armour, the Seventh Circuit had upheld a finding in favor of the firefighters, but in Skidmore the district court and the Fifth Circuit had held that waiting time was not compensable.

The Court declined to issue a firm rule as to whether on-call time is working time. Instead, the Court held that the result turns on whether an employee's time "is spent predominantly for the employer's benefit or for the employee's," a question "dependent upon all the circumstances of the case." Armour, 323 U.S. at 133, 65 S.Ct. at 168; see also Skidmore, 323 U.S. at 136-37, 65 S.Ct. at 162-63. The Court affirmed the judgment for the firefighters in Armour and reversed and remanded in Skidmore for a determination as to whether, considering the facts in that case, the firefighters' waiting time was compensable.

Although the employers' requirement that the employees spend their "time off" in the employers' dormitories was an important factor in both Armour and Skidmore, the Court did not limit its holding to waiting time spent on company premises. Therefore, an employee may be entitled to compensation even though he or she is on call at home or elsewhere. 4 Although we have not decided...

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