Bartholomew v. City of Burlington, Kan.
| Decision Date | 07 April 1998 |
| Docket Number | No. Civ.A. 96-4184-DES.,Civ.A. 96-4184-DES. |
| Citation | 5 F.Supp.2d 1161 |
| Parties | Kendel BARTHOLOMEW and Kristi Bartholomew, Plaintiffs, v. The CITY OF BURLINGTON, KANSAS, Defendant. |
| Court | U.S. District Court — District of Kansas |
Michael E. Francis, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, KS, for Kristi and Kendel Bartholomew, Plaintiffs.
James S. Pigg, David R. Cooper, Fisher, Patterson, Sayler & Smith, Topeka, KS, for City of Burlington, Kansas, Defendant.
Kendel and Kristi Bartholomew, former employees of the City of Burlington, Kansas, seek overtime compensation allegedly due under the Fair Labor Standards Act, ("FLSA") 29 U.S.C. § 201 et. seq. Both plaintiffs seek overtime compensation for time spent "on-call" as employees of the City of Burlington. Plaintiffs also seek overtime compensation for time spent in briefings prior to going on shift. Plaintiffs claim compensatory damages, liquidated damages, and attorney's fees.
The City of Burlington ("City") denies liability under the FLSA and claims that its policies were not so restrictive as to prevent plaintiffs from using the time they were on-call for purely personal activities. The City contends that it has at all times acted in good faith and in accordance with the provisions of the FLSA.
This case is before the court on the City's Motion for Summary Judgment (Doc. 16). The court has considered the briefs of counsel, the uncontroverted facts and applicable law, and is now prepared to rule.
A court shall render summary judgment upon a showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1985). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. "Only disputes over facts that might properly affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir.1993). The movant may discharge its burden "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1985). The movant need not negate the nonmovant's claim. Id. at 323, 106 S.Ct. 2548.
Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 ( Fed. R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof. Id. at 322, 106 S.Ct. 2548. Such a complete failure of proof on an essential element of the nonmovant's case renders all other facts immaterial. Id. at 323, 106 S.Ct. 2548.
A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986) (). The court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250, 106 S.Ct. 2505.
Kendel Bartholomew was hired by the City of Burlington as a police officer in April 1987. Kristi Bartholomew was first employed by the City in August 1993 as a public safety clerk. Kristi Bartholomew was promoted from the public safety clerk position to a patrol officer position on September 26, 1994. Steve Timmons is the Chief of Police for the City of Burlington and has held that position since June 1993.
Plaintiffs, as patrol officers, were required to be on call for eight hours following their normal eight-hour shift, or for 12 hours following a twelve-hour shift. Officers called back to work were compensated for a minimum of one hour of their time. Kendel Bartholomew learned of the on-call policy for the Burlington Police Department ("Department") within a few days of being hired. Kristi Bartholomew knew of the on-call requirement at the time she accepted the promotion to the patrol officer position.
Kristi Bartholomew resigned from her position with the City on March 30, 1995. Within a month of Kristi Bartholomew's resignation, Kendel Bartholomew also resigned. Both plaintiffs contend that they were constructively terminated.
Additional facts are set forth as necessary throughout the court's discussion.
The test for determining whether an employee's on-call time constitutes working time is whether the time is spent predominantly for the employer's benefit or for the employee's. Andrews v. Town of Skiatook, Okl., 123 F.3d 1327, 1330 (10th Cir. 1997) (citing Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944)). Application of the test "requires consideration of the agreement between the parties, the nature and extent of the restrictions, the relationship between the services rendered and the on-call time and all surrounding circumstances." Id. (citing Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). "`Resolution of the matter involve[s] determining the degree to which the employee could engage in personal activity while subject to being called.'" Renfro v. City of Emporia, Kan., 948 F.2d 1529, 1537 (10th Cir.1991) (quoting Norton v. Worthen Van Service, Inc., 839 F.2d 653, 654 (10th Cir.1988)). In other words, the court must determine whether the restrictions on the employees' on-call time were so burdensome as to render it time predominantly spent for the benefit of the employer. Gilligan v. City of Emporia, Kansas, 986 F.2d 410, 412 (10th Cir.1993). Courts have considered the following factors in determining whether employee plaintiffs had use of on-call time for personal purposes: (1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employees' movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employees could easily trade on-call responsibilities; (6) whether use of a pager could ease restrictions; and (7) whether the employees had actually engaged in personal activities during call-in time. See Owens v. Local No. 169, 971 F.2d 347, 351 (9th Cir. 1992); Burnison v. Memorial Hosp., Inc., 820 F.Supp. 549, 553 (D.Kan.1993).
In addition to the authorities set forth above, it is helpful to consider the following regulations promulgated by the United States Department of Labor concerning the compensability of on-call time:
An employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while "on call". An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.
Time spent away from the employer's premises under conditions that are so circumscribed that they restrict the employee from effectively using the time for personal pursuits also constitutes compensable hours of work.
The critical issue is "whether the employee can use the [on-call] time effectively for his or her own purposes". Bright v. Houston Northwest Medical Center Survivor, Inc., 934 F.2d 671 (5th Cir.1991). However, "this does not imply that the employee must have substantially the same flexibility or freedom as he would if not on call, else all or almost all on-call time would be working time, a proposition that the settled case law and the administrative guidelines clearly reject." (citations omitted). Id. at 677.
There is no evidence that any written agreement existed between plaintiffs and the City. Nor is there evidence of any implied agreement that plaintiffs would be compensated for their on-call time. Indeed, plaintiffs concede that they were aware of the City's on-call policy and yet continued their employment with the Burlington Police Department knowing their employment required such on-call duty.
Unless otherwise relieved because of illness, leave, or vacation, plaintiffs, as patrol officers for the City of Burlington, were required to remain in an "on-call" status...
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