Andrews v. Town of Skiatook

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 19 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

MICHAEL ANDREWS,

Plaintiff-Appellant,
v.
No. 96-5075
TOWN OF SKIATOOK,
OKLAHOMA,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 95-C-0057-M)

Eric B. Bolusky, Huffman, Thomas & Bolusky, Tulsa, Oklahoma, for Plaintiff-
Appellant.

Jay C. Baker, Tulsa, Oklahoma, for Defendant-Appellee.

Before ANDERSON, BALDOCK, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Michael Andrews was an emergency medical technician (EMT) employed

by the ambulance service of the Town of Skiatook, Oklahoma. Andrews worked

four twelve-hour shifts per week, for which he was compensated. He was on call
during four twelve-hour shifts per week, for which he was not compensated. 1

Andrews brought an action against the town, claiming that the hours he was on

call were compensable under the Fair Labor Standards Act because of the

restrictions placed on his personal activities during on-call time.

By the parties' consent the action was tried to a magistrate judge who

rejected Andrews' claim, finding that the time he spent on call was

"predominantly for his personal benefit" and not for the benefit of his employer. 2

Andrews appeals.

The magistrate judge expressed his decision in well-reasoned Findings of

Fact and Conclusions of Law with which we substantially agree. 3 We thus attach

the Findings of Fact and Conclusions of Law as an Appendix and AFFIRM for

substantially the reasons stated therein.

1
Every third week, Andrews was required to work five on-call shifts.
2
The parties consented to final disposition by the magistrate judge pursuant
to 28 U.S.C. § 636(c). Therefore, we have jurisdiction to review the magistrate
judge's decision without the intervening consideration of the district court.
Grimsley v. MacKay, 93 F.3d 676, 678 (10th Cir. 1996).
3
We review a decision rendered by a magistrate judge pursuant to 28 U.S.C.
§ 636(c) using the same standards that we apply to a decision of a district court.
Grimsley, 93 F.3d at 679. Thus, we have reviewed the issues of law de novo and
the findings of fact under a clearly erroneous standard. Id.

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 APPENDIX

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

MICHAEL ANDREWS, )
)
PLAINTIFF, )
) CASE NO. 95-C-0057-M
vs. )
)
TOWN OF SKIATOOK, OKLAHOMA, )
)
DEFENDANT. )

FINDINGS OF FACT/CONCLUSIONS OF LAW

The parties consented to trial before a United States Magistrate Judge

pursuant to 28 U.S.C. § 636(c). This Court conducted a non-jury trial on January

22, 1996 and January 31, 1996. Based upon the evidence presented at trial, the

argument of counsel and the proposed Findings of Fact and Conclusions of Law

and supporting briefs submitted by both parties, the Court hereby issues its

FINDINGS OF FACT AND CONCLUSIONS OF LAW.

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 FINDINGS OF FACT

1. Plaintiff, Michael Andrews, is a resident of the town of Skiatook,

State of Oklahoma, and was employed by the Town of Skiatook as an Emergency

Medical Technician (EMT) from February 28, 1993 to January 6, 1995.

2. Defendant, Town of Skiatook, is a political subdivision of the State

of Oklahoma, existing under the laws of the State of Oklahoma, and was engaged

in the business of managing, maintaining and operating an emergency ambulance

service at all times relevant to this litigation.

3. During his employment as an EMT with the Town of Skiatook,

Plaintiff was required to work four regular twelve-hour shifts per week and four

twelve-hour on-call shifts per week which immediately followed his regular

twelve-hour shift. Every third week Plaintiff was required to work one additional

twelve-hour on-call shift. EMTs were permitted to trade their on-call shifts with

another EMT and would then be expected to pay back the other EMT by covering

an on-call shift for him/her.

4. The Town of Skiatook operated two emergency ambulances. One

ambulance was staffed by two EMTs who remained at the ambulance station. The

second ambulance was staffed by two “on-call EMTs” who were required to

respond to calls in the second ambulance when an emergency call was received

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while the first ambulance was on another run. A call serviced by the second

ambulance staffed by on-call EMTs is called a “second run.”

5. While on-call, Plaintiff was required to monitor a pager which could

be utilized to summon him for a second run. In addition to summoning the on-

call personnel, the pager would advise the on-call personnel when the first

ambulance had gone on a run. On-call EMTs could also monitor a police radio,

which would advise them when the first ambulance had completed its run and

returned to the ambulance station. Thus, the on-call EMTs would be aware when

the first ambulance was on a run and there was an increased likelihood they could

be summoned to make a second run.

6. While on-call, the EMTs were required to remain clean and

appropriately attired, although not required to report in uniform, to refrain from

drinking alcohol, and to respond to an on-call page within a reasonable period of

time.

7. Conflicting evidence was presented to the Court concerning the

required response time for on-call EMTs to begin a second run. Plaintiff

presented evidence that the Town of Skiatook required on-call EMTs to respond

and be physically moving in the second ambulance within five minutes of

receiving a page for a second run. Defendant presented evidence that there was

no official policy that on-call EMTs respond and be rolling on a call within five

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minutes of receiving the page. Rather, Defendant contended that on-call EMTs

were only required to respond and be rolling in a reasonable time.

8. Defendant’s Exhibit 12 sets forth Plaintiff’s actual response time for

the 76 second runs he made during his approximately two years of employment

with Defendant. The response time is the number of minutes it took for Plaintiff

to respond to the page and be rolling in the ambulance. Plaintiff averaged a

response time of 4.84 minutes. Plaintiff took more than five minutes to respond

to 28 of the calls, the longest being 13 minutes. Plaintiff's response times ranged

from zero (0) minutes, which was explained by his presence at the ambulance

station when the call was received, to a high of 13 minutes. Plaintiff was never

disciplined for response times in excess of 5 minutes.

Based upon the evidence presented and the credibility determinations made

by the Court, the Court finds that there was not an official policy of Defendant

requiring on-call EMTs to respond and be rolling on a second run within five

minutes of receiving the page. However, the Court finds that there was an

established practice of Defendant which required on-call EMTs to respond to a

page for a second run promptly and that this practice resulted in a practical

requirement that on-call EMTs respond to a page for a second run and be rolling

within five to ten minutes of receiving a page.

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 9. Plaintiff was not compensated for the time spent on-call unless he

was called back to make a second run, in which case, Plaintiff was compensated

for a minimum of two hours at time and one/half pay. Of the 76 second runs

Plaintiff made, none lasted more than two hours.

10. In 1993, the Town of Skiatook ambulance service made a total of

1,071 runs, 115 of which were second runs. Plaintiff made 28 second runs.

11. In 1994, the Town of Skiatook ambulance service made a total of

1,171 runs of which 140 were second runs. Plaintiff made 48 second runs.

12. Plaintiff worked ten months in 1993. At four on-call shifts per week

and one extra on-call shift every three weeks, Plaintiff would have worked a total

of 173 on-call shifts in 1993. Considering that Plaintiff went on 28 second runs

in 1993, the Court calculates that Plaintiff was actually called back to service

during 16.18% of his on-call shifts in 1993.

13. Plaintiff worked a full twelve months in 1994. At four on-call shifts

per week and one extra on-call shift every three weeks, Plaintiff would have

worked a total of 209 on-call shifts. Considering that Plaintiff went on 48 second

runs in 1994, the Court calculates that Plaintiff was called back to service during

22.96% of his on-call shifts in 1994.

14. Considering the total number of all second runs for the Skiatook

ambulance service in relation to the total number of ambulance calls for the

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Skiatook ambulance service, based on Defendant's Exhibit 12, the Court

concludes that in 1993, second runs were required in 10.7% of the total number of

calls, while in 1994, second runs were required in 11.9% of the total number of

calls.

CONCLUSIONS OF LAW

This Court has jurisdiction of this matter pursuant to the Fair Labor

Standards Act, 29 U.S.C. § 201 et seq. and 28 U.S.C. § 1337. Defendant Town

of Skiatook is a public agency and employer within the meaning of the Fair Labor

Standards Act, is located within the jurisdiction of this Court, and is subject to the

provisions of the Fair Labor Standards Act.

The test to determine 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. Armour & Co. v. Wantock, 323 U.S. 126, 65 S. Ct.

165, 89 L. Ed. 118 (1944). That 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, Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161, 89 L. Ed.

124 (1944).

The 10th Circuit has consistently adhered to the above principles in

addressing the issue of the compensability of on-call time. See generally Gilligan

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v. City of Emporia, Kansas, 986 F.2d 410 (10th Cir. 1993)(no on-call

compensation for water and sewer employees required to wear pager, stay sober

and report within 30 minutes); Armitage v. City of Emporia, Kansas, 982 F.2d 430

(10th Cir. 1992)(no on-call compensation for detectives required to wear pager,

stay sober, report within 20 minutes where called less than 2 times per week);

Renfro v. City of Emporia, Kansas, 948 F.2d 1529 (10th Cir. 1991)(on-call

compensation awarded to firefighters required to report within 20 minutes where

the number of call-backs could be as high as 13 per shift and averaged 3-5 per

shift); Boehm v. Kansas City Power & Light Company, 868 F.2d 1182 (10th Cir.

1989)(no on-call compensation for power company linesmen who were required

to be reachable by telephone and to accept call-outs 1/3 of the time called);

Norton v. Worthen Van Service, Inc., 839 F.2d 653 (10th Cir. 1988)(no on-call

compensation for van drivers required to report within 15-20 minutes).

In addition to the authorities set forth above, the Court has also considered

the following regulations promulgated by the United States Dept. 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. 29 C.F.R. § 785.17.

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 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. 29 C.F.R. § 553.221(c).

Resolution of the matter involve[s] determining the degree to which
the employee could engage in personal activity while being subject to
being called. 29 C.F.R. § 553.221(b) [sic] [cite should be to Renfro,
948 F.2d at 1537, quoting Norton, 839 F.2d at 655].

Of the five 10th Circuit cases cited above, in four of the cases the court

held that time spent on-call is not compensable. The sole 10th Circuit authority

finding on-call time compensable is Renfro, supra. Plaintiff argues that his case

is controlled by the decision in Renfro. This Court disagrees.

In Renfro the firefighters, although not required to remain on the premises

while on-call, were required to report to the station within twenty minutes of

being called back, were called back as many as 13 times in one shift, and

averaged 3 to 5 callbacks per on-call shift. In Renfro, the 10th Circuit affirmed

the district court which found:

[T]he frequency with which Emporia firefighters are subject to call-
backs readily distinguishes this case from cases which have held that
on-call time is non-compensable. In many of those cases, the
probability of an employee being called in, and thus, the probability
of disruption of the employee's personal activities, was minimal.

Renfro v. City of Emporia, Kansas, 729 F. Supp. 747, 752 (D. Kan. 1990). The

infrequency of callbacks in this case distinguishes it from Renfro.

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 Instead of being called back to work on average between 3 to 5 times per

on-call shift, Plaintiff was only called back 16.18 % of the time during his on-call

shifts in 1993 and 22.96 % of the time for his on-call shifts in 1994. Further,

when all on-call second runs are calculated, any EMT on-call for Defendant was

required to respond to a second run only 10.7 % of the time in 1993, and 11.9% of

the time in 1994. This major difference in the number of times Plaintiff was

called back as compared to the firefighters in Renfro clearly distinguishes the

present case from Renfro and aligns it squarely with Gilligan, Armitage, Boehm

and Norton, supra.

Plaintiff also relies on an opinion letter of the Wage/Hour Administrator of

the Dept. of Labor, No. 1609, wherein the Wage/Hour Administrator opined as

follows:

On-call time of ambulance personnel who were required to either
remain at an establishment while on call or be ready to respond from
their home within three minutes was compensable time. The three-
minute response requirement was too restrictive for employees to use
on-call time effectively for their own purposes.

However, the opinion letter gives no more than this bare-boned factual statement

focusing completely upon the 3 minute response time. As noted above, the Court

finds that the required response time in this case ranged between 5 and 10 minutes

with a low incidence of actually being called for a second run while on-call.

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These facts render the conclusion reached in the opinion letter relied upon by

Plaintiff inapplicable to the instant case.

The situation in this case is closer to Spires v. Ben Hill County, 745 F.

Supp. 690 (M.D. Ga. 1990), than it is to either Renfro or the opinion letter. In

Spires the court held that EMTs on-call who were required to respond to the

station within ten minutes of receiving a call, in uniform or jumpsuit, clean and

sober, and who also worked greater than 8 hours per 24 hour on-call period did

not qualify for on-call compensation because the restrictions did not preclude

them from effectively using their time for personal pursuits.

While the Court certainly acknowledges that Plaintiff’s time on-call

somewhat restricted his personal activities; the test is not whether there was some

restriction on Plaintiff’s personal activities. Rather the test is whether Plaintiff’s

on-call time was spent predominantly for the benefit of his employer. In Bright v.

Houston Northwest Medical Center Survivor, Inc., 934 F.2d 671 (5th Cir. 1991),

the Court observed:

As noted, we have described “the critical issue” in cases of this kind
as being “whether the employee can use the [on-call] time effectively
for his or her own purposes”. 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.

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 On the facts before this Court, it is clear that Plaintiff’s on-call time was

predominantly for his personal benefit. While on-call, Plaintiff was free to

engage in any activity of his choosing as long as he remained clean, did not drink

alcohol and could respond to the ambulance station within five to ten minutes.

The five to ten minute requirement gave Plaintiff access to all of the small town

of Skiatook. Further, the fact that Plaintiff was notified when the first ambulance

had gone on a run enabled Plaintiff to prepare for the possibility of a second run

and to structure his activities so his on-call time would be as least restrictive as

possible. In this regard it is fair to conclude that Plaintiff felt only slight

restrictions on his personal activities while the first ambulance was not out on a

call. It was only when the first ambulance was out on a call that Plaintiff had any

significant chance of having to respond to a second run call and, based upon

actual experience, Plaintiff knew that the percentage of time when a second run

call would be required was small. Thus, Plaintiff was predominantly free to

pursue his personal activities during his on-call time.

Additionally, the Court would note that even when Plaintiff had to respond

to a second run, the time entailed was uniformly less than two hours. Thus, the

times when Plaintiff’s personal affairs were disturbed while he was on-call were

of low frequency and of short duration. As stated by the Court in Armitage,

supra, at page 433:

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 Although the detectives’ services are certainly beneficial to the
public, to require compensation under these facts would require that
all on call employees be paid for standby time. This would be a
major change in the law of the FLSA.

Such is the case before this Court and this Court likewise declines to require the

major change in the law of the FLSA that compensation of on-call time in this

case would entail.

Based upon the above FINDINGS OF FACT AND CONCLUSIONS OF

LAW, the Court finds that Plaintiff has failed to prove by a preponderance of the

evidence that his on-call time was spent predominantly on behalf of Defendant

employer. THE COURT, THEREFORE, FINDS IN FAVOR OF DEFENDANT.

Judgment will be entered accordingly.

DATED this 14th day of February, 1996.

FRANK H. McCARTHY
UNITED STATES MAGISTRATE JUDGE

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