Bright v. Houston Northwest Medical Center Survivor, Inc., 88-2884

• Decision Date: 21 November 1989
• Docket Number: No. 88-2884,88-2884
• Citation: 888 F.2d 1059
• Parties: 29 Wage & Hour Cas. (BN 905, 58 USLW 2375, 113 Lab.Cas. P 35,286 Frederick George BRIGHT, Plaintiff-Appellant, v. HOUSTON NORTHWEST MEDICAL CENTER SURVIVOR, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1059

888 F.2d 1059

29 Wage & Hour Cas. (BN 905, 58 USLW 2375,

113 Lab.Cas. P 35,286

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

No. 88-2884.

United States Court of Appeals Fifth Circuit.

Nov. 21, 1989.

Garwood, Circuit Judge, dissented and filed opinion.

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 JOHNSON, WILLIAMS and GARWOOD, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Appellant, Frederick George Bright, sued Houston Northwest Medical Center Survivor, Inc. (Northwest) for overtime compensation under the Fair Labor Standards Act, 29 U.S.C. Sec. 201, et seq. The district court granted summary judgment for Northwest. Convinced that a genuine issue of material fact exists and that Bright's case cannot be decided as a matter of law, we reverse.

Bright alleges the following facts. He worked as a biomedical technician for Northwest from April 1981 until January 1983. Between April 1981 and February 1982, Bright worked a forty-hour week for which he was paid an hourly wage. In February 1982, Bright's work life changed drastically. He was given an electronic pager previously worn by another employee, who had since resigned from his job, and was told that in addition to his forty-hour week he would be required to be on call at all times. "On call" meant that he would need to be available twenty-four hours a day, seven days a week, 365 days a year to arrive at the hospital within twenty minutes of the time that he was paged, and in a physical and mental condition to repair complicated biomedical equipment. Two months after he was given the pager, Bright was promoted to a managerial position, although it appears from the record that the promotion had no effect on the terms or conditions of his employment.

During the time that Bright wore the pager, he was generally paged three to four times a week to service equipment. He received four hours of compensation time for each call that he made, regardless of the amount of time he took to repair the equipment.

Bright now sues for overtime compensation for the time that he was on call. He complains that he could not effectively use the on call time for his own purposes because of the restrictions placed on him by Northwest. Northwest claims that the restriction was minimal, that Bright was merely required to wear a pager, and that during the time that he was not called out, his time was not spent primarily for the benefit of the employer and was not compensable.

I.

Summary judgment is properly granted when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

Bright brings this claim under the Fair Labor Standards Act. 29 U.S.C.A. Sec. 207(a)(1) reads:

Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, 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.

Bright claims that under the Act he is entitled to overtime compensation for at least a portion of the time he spent while on call, even though he had not been called out.

Two Supreme Court cases have laid the groundwork for evaluating Bright's claim. See Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944); Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944). In those cases the Court held "that no principle of law found either in the statute or in Court decisions precludes waiting time from also being working time." Skidmore, 323 U.S. at 136, 65 S.Ct. at 163. Refusing to "lay down a legal formula to resolve cases so varied in their facts," the Skidmore court determined that "[w]hether in a concrete case such time falls within or without the Act is a question of fact to be resolved by appropriate findings of the trial court.... Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged." Id. at 136-37, 65 S.Ct. at 163 (emphasis added). See also Armour, 323 U.S. at 133, 65 S.Ct. at 168 ("Whether time is spent predominantly for the employer's benefit or for the employee's is a question dependent upon all the circumstances of the case.").

Because we believe that a genuine factual dispute exists about whether Bright's on call time constituted time that Bright was engaged to be waiting, we reverse summary judgment. A reasonable jury could, if all claimant's assertions are accurate, return a verdict for Bright.

II.

Northwest contends that summary judgment is proper because, in a number of other cases with similar facts, courts have determined that on call time was not compensable. Northwest also points to the interpretative regulations under the FLSA, which it asserts requires the conclusion that Bright's on call time does not constitute working time under the FLSA. Neither the case law nor the regulations, however, are as clear as Northwest urges.

In determining when waiting time raises a question of fact under the FLSA, the Supreme Court in Skidmore discussed the factors that should be taken into account by the trial court: "This involves scrutiny and construction of the agreements between the particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of 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. at 163. While Northwest correctly argues that it entered into no agreement to pay Bright for on call time, lack of agreement does not end the inquiry. We must also consider the other factors listed in Skidmore.

The nature of Bright's service differs from that involved in other cases in one important respect: Bright asserts and Northwest does not deny that he never had any reprieve from on-call duties. The relentless character of the job seriously disrupted and changed his life. Bright claims, for example, that as a result of the "twenty minute leash" kept on him twenty-four hours a day, 365 days a year, he and his wife were no longer able to visit friends in Houston and the Houston area if they lived more than twenty minutes from the hospital. Nor could they travel out of the city on weekends or go on vacation. Additionally, Bright could not supplement his income with part-time work, as he had previously done, and he was prevented from furthering his education. The requirement that he be able to arrive in a physical and mental condition to repair the complex machinery curtailed his enjoyment of parties and other recreational situations since he could drink alcoholic beverages only with great care and constant concern. Certainly the unusual and all-consuming nature of these restrictions creates a genuine issue of material fact as to the extent he was working during on call time.

Northwest contends that its position is validated by interpretative regulations promulgated by the Wage and Hour Administrator. Since that regulation basically codifies Armour, it is not as conclusive as Northwest suggests. The interpretation reads:

An employer 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.

29 C.F.R. Sec. 785.17. Northwest concludes from the second sentence that Bright was not working while on call. But Bright's situation is not the situation anticipated by the regulation. Bright was not "merely required to leave word at his home." Rather, Bright argues that he was required to remain so close to the employer's premises that he could not use the time effectively for his normal personal purposes. And as we have recently pointed out, "[t]hese regulations [29 C.F.R. Secs. 785.14-.17] make clear that the critical issue in determining whether an employee should receive compensation for idle time is whether the employee can use the time effectively for his or her own purposes." Halferty v. Pulse Drug Co., Inc., 864 F.2d 1185, 1189 (5th Cir.1989). Focusing on this issue, we believe a reasonable jury could find that Bright's relentless on call time was compensable time under the FLSA.

Such a construction is supported further when Sec. 785.17 is read in conjunction with Sec. 785.16, which defines "off duty:"

Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the...