Crook v. Russell
| Decision Date | 30 October 1987 |
| Citation | 532 A.2d 1351 |
| Parties | 28 Wage & Hour Cas. (BNA) 1506, 110 Lab.Cas. P 55,999 Robert CROOK v. Isaac RUSSELL, d/b/a Russell's Ambulance Service. |
| Court | Maine Supreme Court |
Michael R. Poulin (orally), Laurie A. Gibson, Skelton, Taintor & Abbott, Auburn, for plaintiff.
Robert E. Mullen (orally), Linnell, Choate & Webber, Auburn, for defendant.
Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ.
Robert Crook appeals from a judgment entered in the Superior Court, Oxford County, following a non-jury trial. Crook brought suit to recover overtime compensation and liquidated damages under 26 M.R.S.A. §§ 626 and 664 (Supp.1986) against Isaac Russell, the owner and operator of Russell's Ambulance Service in Norway for whom Crook formerly worked as an EMT. The trial justice found for Russell. Crook maintains on appeal that the trial justice's findings are clearly erroneous. We disagree and affirm the judgment.
Since 1970, Russell has owned and operated Russell's Ambulance Service on Main Street in Norway. Russell's Ambulance Service was under contract as the primary ambulance provider for the towns of Norway and South Paris during the period relevant to this case. Three ambulances were garaged at the station in Norway. Russell employed several Emergency Medical Technicians (EMT's) and ambulance attendants on either a full-time or part-time basis. 1 The ambulance service was staffed by a full-time day shift and a night shift consisting of full and part-time help. The day shift was from 8:00 a.m. to 5:00 p.m. and the night shift ran from 5:00 p.m. to 8:00 a.m. Approximately 75% of the calls received and runs made by the service were during the day shift in 1984. In addition to operating the ambulances when called, the day shift employees were responsible for stocking the ambulances with supplies and cleaning the ambulances and station area. The day shift was usually staffed by at least two EMT's.
The night shift was staffed on a voluntary basis. It was not a condition of employment that one work the night shift. The night shift employees were responsible for finishing up chores left undone by the day shift. Aside from that, their only assigned duties were to answer calls for assistance. The night shift workers were paid a flat fee of $15.00 for each night they worked, 2 in addition to 1 1/2 times their usual hourly rate of pay for any time spent responding to a call. This flat fee was increased to $18.00 at the end of 1984. The night shift workers were employed on an on-call basis. They were free to leave the station at any time, to tend to personal matters or even go home. When leaving the station, the night shift employees would phone Russell and either tell him of a phone number where they could be reached or they would take with them one of the two radios or the pager kept at the station. Any employee leaving the station at night was required to notify Russell of this fact by phone.
The night shift workers were not told that they had to meet a minimum response time to calls for assistance. However, Russell required his night shift employees to remain at or reasonably near the station. The night shift employees were also not allowed to drink alcohol, whether at the station or in their homes while on call. Day shift employees and employees on-call at night were required to wear a uniform prescribed by Russell consisting of dark pants, a white shirt, dark jacket and optional EMT patches. The trial justice found that Russell's loosely-defined uniform code did not force employees to dress in a way that was "so unique, ornate or restrictive that it would interfere with personal matters or cause them embarrassment if worn outside the work place."
If an on-call night shift worker chose to do so, he or she could remain at the station throughout the night. The station was equipped with a kitchen, lounge and a cable television. The station was frequently used as a gathering place for employees to socialize at night, even if they were not on-call. If an off-duty employee was present at the station when a call came in at night, the employee would be allowed to go out on the call if he or she wished to.
Crook was employed by Russell on a part-time basis starting in 1982. In June, 1984, Crook was employed by Russell as a full-time EMT, working the day shift 40 hours per week. During the time of his employment, Crook worked some night shifts in addition to his regular 40 hour week. His employment was terminated by Russell early in January of 1985.
After his discharge, Crook brought this action seeking overtime pay allegedly owed him under 26 M.R.S.A. § 664 3 and requesting an award of liquidated damages, costs, and attorneys' fees pursuant to 26 M.R.S.A. § 626. 4 Before trial, he voluntarily dismissed other counts in his complaint. Crook based his statutory claim on the ground that, for the nights he was on call, he should have received overtime pay not only for the time spent responding to a call but for time spent waiting while on-call. After a trial, the trial justice determined that Crook's waiting while on-call at night did not constitute work within the meaning of the overtime statute; consequently, he held that Crook could not recover overtime pay or damages.
Crook urges that the trial justice's findings be overturned as clearly erroneous on three grounds: (1) the evidence showed that Crook was required to remain at or near the station during night shifts, (2) the time spent by Crook during the night shift was primarily for Russell's benefit and (3) the totality of circumstances show that Crook was employed for the time he waited on-call during night shifts.
The findings of fact of a trial justice sitting as a trier of fact will not be overturned by this court unless they are clearly erroneous. Leadbetter v. Morse, 510 A.2d 524, 526 (Me.1986); Dunning v. Dunning, 495 A.2d 821, 823 (Me.1985); Tiemann v. Santarelli Enterprises, Inc., 486 A.2d 126, 132 (Me.1984). Such findings will be upheld on review if there is any competent evidence in the record to support them. The presence of evidence in the record that would support a contrary finding furnishes no basis for reversal. Margani v. Sanders, 453 A.2d 501, 504 (Me.1982).
Crook urges that the trial justice's failure to find that Russell's employees were required to remain at or near the ambulance station while on-call during the night shift was clearly erroneous. The justice's finding was as follows:
The only restrictions placed on the night shift personnel were that they remain reasonably available to provide an appropriate response time in the event of an emergency, that they refrain from the use of alcohol and that they be appropriately attired in company uniform.
(footnote omitted).
The justice's finding is amply supported by evidence in the record. Testimony of Marsha Coffman, an employee of Russell's, revealed that employees could take an ambulance home for at least part of an evening. Other testimony indicated that night shift employees could stay home and either be picked up by an ambulance en route to a call or drive a personal car to meet an ambulance at the scene of a call. Although Russell did testify that he required night shift employees to stay at or reasonably near the station, considering the foregoing testimony, the trial justice was not clearly erroneous in describing the requirement as one of remaining "reasonably available to provide an appropriate response time."
Crook argues that "reasonably available" actually meant being "at or near" the station. However, if the testimony previously discussed is believed, being "reasonably available" did not necessarily mean being "at or...
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