Brigham v. Eugene Water & Elec. Bd., 01-35932.

• Decision Date: 03 February 2004
• Docket Number: No. 01-35932.,01-35932.
• Citation: 357 F.3d 931
• Parties: Charlene BRIGHAM, as personal representative of the Estate of James Brigham; Carl Hall; Gary Millsap; Donald E. Reed, Plaintiffs-Appellants, v. EUGENE WATER & ELECTRIC BOARD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

357 F.3d 931

Charlene BRIGHAM, as personal representative of the Estate of James Brigham; Carl Hall; Gary Millsap; Donald E. Reed, Plaintiffs-Appellants, v. EUGENE WATER & ELECTRIC BOARD, Defendant-Appellee.

No. 01-35932.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2003.

Filed February 3, 2004.

David C. Force, Eugene, OR, filed briefs for the appellants and argued the cause on their behalf.

Linda J. Kessel, Harrang, Long, Gary, Rudnick, Eugene, OR, filed briefs for the appellee. James E. Mountain, Jr., argued the cause on their behalf.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding. D.C. No. CV-00-06293-HO.

Before O'SCANNLAIN, FERNANDEZ, and FISHER, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We must decide whether employees of an electric utility who reside on their employer's remote premises were wrongfully denied overtime pay in violation of the federal Fair Labor Standards Act and Oregon state law.

I

James Brigham, Carl Hall, Gary Millsap, and Donald Reed ("the employees") are current or former employees stationed at the Carmen Smith Hydroelectric Project ("project" or "site"), a power generation facility straddling the upper McKenzie River some 70 miles east of Eugene, Oregon, on lands located predominantly within the Willamette National Forest.¹ Owned by the City of Eugene, Oregon through its Eugene Water & Electric Board ("EWEB"), the site was constructed in the early 1960's and is comprised of three sizeable dams and two powerhouses. Although the site is partially monitored at a central facility in Eugene, four EWEB employees work and are required to live (along with their families) on-site in housing provided to them by EWEB.²

These employees³ worked four-day weeks, which usually were comprised of three "maintenance" shifts and one "duty" shift.⁴ On maintenance shifts, the employees worked from 6:30 a.m. to 5:00 p.m. Accounting for breaks, the employees performed ten hours' work during the course of a maintenance shift and accordingly were paid ten hours' wages. Any work performed beyond ten hours was paid at a double-time rate.

In contrast, duty shifts lasted a full 24 hours. During that time, a designated employee was responsible for the operation and safety of the entire project. Between 6:30 a.m. and noon, he was charged with monitoring, inspecting, and logging the status of the two generating plants and performing any necessary maintenance. At noon, he usually returned to his house. In the evening, he was required to inspect and again to log the status of powerhouses, a task which took about an hour. Thereafter — and indeed, for the entirety of his shift — the on-duty employee was required to remain at Carmen Smith, available for emergency phone or radio contact with the central dispatcher in Eugene.⁵ Each house on the site was also equipped with a system that would alert the employee to any automated monitoring alarms, to which (along with any calls from the central dispatcher) the duty employee was required to respond "immediately."⁶ Subject to these restrictions — as well as the requirement that they be "fit" — on-duty employees were free to sleep, to eat, and to spend time with their families.

Although the employees performed only about 6 hours of scheduled work during the course of a duty shift, they were paid ten hours' wages. On-duty employees also were compensated at a double-time rate for any call-out time lasting beyond a call's first 15 minutes. And, in addition to these wages, EWEB provided the employees with free housing, electricity, water, garbage service, and satellite television, along with a bus driver and the cost of fuel and maintenance for a school bus to transport the employees' children to school.

Between their maintenance and duty shifts, the employees were often on some form of duty status — either performing actual maintenance or on standby — for as much as 60 hours per week.

II

The employees filed suit in the circuit court of Lane County, Oregon, on August 14, 2000, alleging that their duty shift on-call time was uncompensated work⁷ and, accordingly, seeking compensation for unpaid overtime under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a)(1),⁸ and under two provisions of Oregon law, O.R.S. 279.340⁹ and O.R.S 652.020.¹⁰ EWEB removed the case to federal court on September 15, 2000, and filed a motion for summary judgment on July 16, 2001. The employees opposed EWEB's motion, and argued alternatively that, if the district court granted summary judgment on the FLSA claim, it should decline to exercise supplemental jurisdiction over their state-law claims.

On August 30, 2001, the district court heard oral argument on the motion and that same day issued an order granting summary judgment to EWEB, denying the employees' request that it decline supplemental jurisdiction, and dismissing their state-law causes of action with prejudice. Judgment was entered on August 31, and seven days later the employees filed a motion to amend the judgment on the grounds that the district court should not have decided their state-law claims. Subsequently, the employees also objected to defense counsel's bill of costs.

The district court denied the motion to amend on October 31, 2001, and two days later issued an order awarding EWEB costs in the amount of $1,437.93. The employees timely filed an amended notice of appeal.

III

We first consider whether the (formally) uncompensated 14 hours of each 24-hour duty shift constituted compensable working time within the meaning of the FLSA.¹¹

A

As the Supreme Court long ago recognized, the inquiry into whether "on-call" or "waiting" time constitutes compensable "working" time for purposes of FLSA § 207(a)(1) is particularly challenging. Although "no principle of law found either in the statute or in Court decisions precludes waiting time from also being working time[,] we cannot ... lay down a legal formula to resolve cases so varied in their facts as are the many situations in which employment involves waiting time." Skidmore v. Swift & Co., 323 U.S. 134, 136, 65 S.Ct. 161, 89 L.Ed. 124 (1944). "[F]acts may show that the employee was `engaged to wait,' which is compensable, or they may show that the employee `waited to be engaged,' which is not compensable." Owens v. Local No. 169, Ass'n of W. Pulp & Paper Workers, 971 F.2d 347, 350 (9th Cir.1992) (quoting Skidmore, 323 U.S. at 137, 65 S.Ct. 161).

In determining whether the employees spent the uncompensated 14 hours of each duty shift "engaged to wait," and therefore working within the meaning of § 207(a)(1), or simply "waiting to be engaged," and therefore not working within the meaning of the statute, the Court has directed us to "scrutin[ize] and constru[e] the agreements between the particular parties, apprais[e] their practical construction of the working agreement by conduct, consider[] the nature of the service, and its relation to the waiting time, and all of the surrounding circumstances." Skidmore, 323 U.S. at 137, 65 S.Ct. 161. Our most recent cases emphasize that "the two predominant factors in determining whether an employee's on-call waiting time is compensable overtime are `(1) the degree to which the employee is free to engage in personal activities; and (2) the agreements between the parties.'" Berry, 30 F.3d at 1180 (9th Cir.1994) (quoting Owens, 971 F.2d at 350).¹² We address these considerations in turn.

B

In Owens, we enumerated an illustrative list of factors to consider in gauging the extent to which employees could pursue personal activities during the course of their on-call shifts:

(1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee's 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 employee could easily trade on-call responsibilities; (6) whether the use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during call-in time.

Owens, 971 F.2d at 351 (footnotes omitted). "Because `[n]o one factor is dispositive,' a court should balance the factors permitting personal pursuits against the factors restricting personal pursuits to determine whether the employee is so restricted that he is effectively engaged to wait." Berry, 30 F.3d at 1183 (quoting Owens, 971 F.2d at 351). Of course, an employee need not "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." Owens, 971 F.2d at 350-51 (quoting Bright v. Houston Northwest Med. Ctr. Survivor, Inc., 934 F.2d 671, 677 (5th Cir.1991) (en banc)).

In this case, the Owens factors are closely divided. As previously noted, EWEB did require the employees to live on premises (factor 1). Indeed, it forbade them from maintaining an off-site primary residence. While on-call, the employees were subject to strict geographic constraints (factor 2): They had to remain within earshot of their home phones and alarm systems because they were required to respond instantaneously to any alerts (factor 4). Use of a pager (or, for that matter, a wireless phone or two-way radio) would do little to lessen these burdens (factor 6), as the plant was readily accessible only by foot from the employees' homes.

At the same time, the employees acknowledge that each was called out, on average, only about once or twice a month (factor 3). When an employee was sick, on vacation, or otherwise occupied by personal needs, he usually was able to trade duty shifts with his colleagues (factor 5). And, perhaps most notable in this regard, the employees routinely engaged in personal activities while they were...