Bright v. Houston Northwest Medical Center Survivor, Inc.

• Decision Date: 02 July 1991
• Docket Number: No. 88-2884,88-2884
• Citation: 934 F.2d 671
• Parties: 30 Wage & Hour Cas. (BN 609, 60 USLW 2056, 119 Lab.Cas. P 35,514 Frederick George BRIGHT, Plaintiff-Appellant, v. HOUSTON NORTHWEST MEDICAL CENTER SURVIVOR, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 671

934 F.2d 671

30 Wage & Hour Cas. (BN 609, 60 USLW 2056,

119 Lab.Cas. P 35,514

Frederick George BRIGHT, Plaintiff-Appellant, v. HOUSTON NORTHWEST MEDICAL CENTER SURVIVOR, INC., Defendant-Appellee.

No. 88-2884.

United States Court of Appeals, Fifth Circuit.

July 2, 1991.

Maurice Bresenhan, Jr., Campbell, Athey, Zukowski & Bresenhan, Houston, Tex., for plaintiff-appellant.

Gail Magers, Sullins Johnston Rohrbach & Magers, Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, POLITZ, KING, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER and BARKSDALE, Circuit Judges. ¹

GARWOOD, Circuit Judge:

This is a former employee's suit for overtime compensation under section 7(a)(1) of the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 207(a)(1). The question presented is whether "on-call" time the employee spent at home, or at other locations of his choosing substantially removed from his employer's place of business, is to be included for purposes of section 7 as working time in instances where the employee was not actually "called." The district court granted the motion for summary judgment of the employer, defendant-appellee Houston Northwest Medical Center Survivor, Inc. (Northwest), ruling that this on-call time was not working time and dismissing the suit of the employee, plaintiff-appellant Frederick George Bright (Bright). A divided panel of this Court reversed and remanded. 888 F.2d 1059 (5th Cir.1989). Disagreeing with the panel majority's contrary conclusion, this Court en banc now holds that the undisputed facts afford no basis for a finding that the employee's on-call time was working time for purposes of section 7. We accordingly affirm the district court's summary judgment for the employer.

Facts and Proceedings Below

Bright went to work for Northwest at its hospital in Houston in April 1981 as a biomedical equipment repair technician, and remained in that employment until late January 1983 when, for reasons wholly unrelated to any matters at issue here, he was in effect fired. Throughout his employment at Northwest, Bright worked a standard forty-hour week at the hospital, from 8:00 a.m. to 4:30 p.m., with half an hour off for lunch, Monday through Friday, and he was paid an hourly wage. Overtime in this standard work week was compensated at time and a half rates, and it was understood that overtime work required advance approval by the department head, Jim Chatterton. When Bright started at the hospital, his immediate supervisor was Howard Culp, the senior biomedical equipment repair technician. Culp had the same work schedule as Bright. However, throughout his off-duty hours, Culp was required to wear an electronic paging device or "beeper" and to be "on call" to come to the hospital to make emergency repairs on biomedical equipment. Culp, as Bright knew, was not compensated for this "on-call" time (although Culp apparently was compensated when he was called). In February 1982 Culp resigned, and Bright succeeded him as the senior biomedical equipment repair technician and likewise succeeded Culp in wearing the beeper and being on call throughout all his off-duty time. Bright remained in that role throughout the balance of his employment at Northwest. The only period of time at issue in this lawsuit is that when Bright had the beeper, namely from February 1982 to the end of his employment in January 1983.

Bright was not compensated for his on-call time, and knew this was the arrangement with him as it had been with Culp. ² During the "on-call" time, if Bright were called, and came to the hospital, he was compensated by four hours compensatory time at his then regular hourly rate (which apparently was some $9 or $10 per hour) for each such call. This compensation was effected by Bright simply working that many less hours the following workday or days: for example, if Bright were called on a Monday evening, he might work in his regular workshift only from 8:00 a.m. until noon on the following Tuesday, but would be paid for the entire eight hours on that day. There is no evidence that these calls on average (or, indeed, in any given instance) took as much as two hours and forty minutes (two-thirds of four hours) of Bright's time. This case does not involve any claim respecting entitlement to compensation (overtime or otherwise) for time that Bright actually spent pursuant to a call from Northwest received while he was on call. ³

It is undisputed that during the on-call time at issue Bright was not required to, and did not, remain at or about the hospital or any premises of or designated by his employer. He was free to go wherever and do whatever he wanted, subject only to the following three restrictions: (1) he must not be intoxicated or impaired to the degree that he could not work on medical equipment if called to the hospital, although total abstinence was not required (as it was during the daily workshift); (2) he must always be reachable by the beeper; (3) and he must be able to arrive at the hospital within, in Bright's words, "approximately twenty minutes" from the time he was reached on the beeper. Bright's answer to interrogatories reflect that in February 1982, when he commenced wearing the beeper and being on call, he was living about three miles, on average a fifteen-minute drive, from the hospital, but that in about July 1982 he moved his residence to a location some seventeen miles, on average a thirty-minute drive, from the hospital, and continued living there throughout all the remaining some five or six months of his Northwest employment. In his deposition, Bright said that this move was made with Northwest's specific prior approval; he also then described the driving time as twenty-five minutes, which he stated his employer said "would be sufficient time." On deposition Bright admitted while on call he not only stayed at home and watched television and the like, but also engaged in other activities away from home, including his "normal shopping" (including supermarket and mall shopping) and "occasionally" going out to restaurants to eat. While the record does not reflect all of Bright's activities while on call, it is undisputed that the only restrictions imposed on him were the three above noted. It is also clear that while on call Bright did no work for Northwest--apart from being in the on-call status and what he did, and was fully and appropriately compensated for, pursuant to actually being called. Bright also testified on deposition that he was "called" on "average" two times during the working week (Monday through Friday) and "ordinarily two to three times" on the weekend. ⁴

Bright filed the instant suit for overtime compensation under section 7 of the FLSA in October 1983. Discovery proceeded through 1986, during which Northwest moved for summary judgment. The district court granted the motion in August 1988, concluding that under the undisputed evidence the on-call time (apart from that spent responding to calls, which was not in issue) was not compensable or working time under section 7.

Discussion

At issue here is whether the time Bright spent on call, but uncalled on, is working time under section 7, which provides in relevant part as follows:

"Except as otherwise provided in this section, no employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. Sec. 207(a)(1).

As the case was resolved below by granting Northwest's motion for summary judgment after ample time for discovery, and as Bright would have had the burden of proof on the dispositive issue at trial, we review the record to determine whether it contains sufficient summary judgment evidence to support a finding that Bright's on-call time, when he performed no active service for Northwest, was working time for purposes of section 7. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The relevant facts recited above are not genuinely disputed, and we conclude that the record reflects no genuine issue of material fact and contains no evidence sufficient to support a finding that Bright's on-call time at issue was working time. Accordingly, the district court did not err in granting Northwest's motion for summary judgment.

Bright urges, and the panel majority apparently agreed, that under the decisions in Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944) and Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), handed down the same day, the question whether such on-call time is working time is necessarily one of fact, thus precluding summary judgment or a directed verdict. This is not our reading of those decisions. Neither involved a summary judgment or a directed verdict or a discussion of the propriety of such a disposition. The thrust of the opinions in this respect was that whether waiting time was working time "is a question dependent upon all the circumstances of the case," Armour 65 S.Ct. at 168, as to which "[e]ach case must stand on its own facts", Skidmore 65 S.Ct. at 164, for the Court could not lay down a single "legal formula to resolve cases so varied in their facts as are the many situations in which employment involves waiting time." Id. 65 S.Ct. at 163. But to state, as this language does, that the particular facts in each case are determinative, is not to say that where those discrete facts are found the resulting categorization as working or nonworking time is also necessarily always a factual rather than a legal question. Indeed, Skidmore expressly...