Opinion
Civil Action No. 1:02-CV-173-C
September 15, 2003
ORDER
On this date the Court considered Defendant's Motion for Summary Judgment, filed July 18, 2003, by Skinny's, Inc. ("Defendant"). Plaintiff's Opposition to Defendant's Motion for Summary Judgment was filed August 8, 2003, by Sharon Edmiston ("Plaintiff"). Defendant did not file a Reply to Plaintiffs Opposition. After considering all the relevant arguments and evidence, the Court GRANTS in part Defendant's Motion for Summary Judgment.
I. FACTUAL BACKGROUND
Plaintiff was employed by Defendant from May 26, 1997, until on or about August 6, 2001. Plaintiff worked as a Subway manager at Defendant's Coleman, Texas store. Plaintiff alleges that during her employment as manager she was uncompensated for overtime and mandatory on-call hours. During her employment, Plaintiff was paid on an hourly basis, and she claims to have worked an average of sixty-two uncompensated overtime hours per week.
Defendant filed this Motion "seeking judgment as a matter of law on Plaintiff's action against it on the grounds that no evidence exists that Plaintiff worked any compensable time over and above that for which she has already been paid." Specifically, Defendant claims that the "off the clock" time violated Defendant's time sheet policy and that the majority of "on-call" time was time spent waiting to be engaged during which Plaintiff was free to pursue personal endeavors.
II. PROCEDURAL BACKGROUND
Plaintiff's Complaint was filed September 3, 2002, and Defendant's Original Answer was filed January 31, 2003. Defendant's Motion for Summary Judgment was filed July 18, 2003, and Plaintiff's Opposition to Defendant's Motion for Summary Judgment was filed August 8, 2003. Defendant's Brief in Reply was filed July 2, 2003.
III STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255.
Once the moving party has initially shown "`that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en bane); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.
IV. DISCUSSION
Two issues are at play in this case: (1) whether the time Plaintiff spent on call while off premises is time for which she should be compensated, and (2) whether "off the clock" time allegedly worked by Plaintiff is time for which she should be compensated. Relevant to both issues is section 7(a)(1) of the Fair Labor Standards Act (FLSA).
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. § 207(a)(1).
ON-CALL TIME
A threshold matter raised in Plaintiff's Brief, and easily disposed of, is whether on-call compensation is an issue of fact to be decided by the fact finder or an issue of law to be addressed in a motion for summary judgment. Plaintiff cites Skidmore v. Swift Company, 323 U.S. 134 (1944), as support for her contention that on-call compensation is a question of fact. However, the Fifth Circuit has spoken directly to this issue. In referring to the proposition that Skidmore precludes summary judgment on a case involving the issue of on-call time, the Fifth Circuit stated "[t]his is not our reading of those decisions." Bright v. Houston Northwest Medical Center Survivor, Inc., 934 F.2d 671, 674 (5th Cir. 1991). Furthermore, the Bright court stated "[i]n such a setting, we have not hesitated to so hold as a matter of law" that when the facts show that the on-call time is not working time, the issue is a legal one. Id. at 675 (emphasis not in original). Therefore, this Court finds that the issue of on-call time is a matter that may properly be disposed of in summary judgment
Employer-required on-call time, in a proper setting, may be working time, but this is not true in all settings. Id. "[I]f the time primarily benefits the employee, the employee can be considered to be waiting to be engaged, and should receive compensation only for actual work time." Halferty v. Pulse Drug Co., 864 F.2d 1185, 1189 (5th Cir. 1989). The Fifth Circuit in Halferty held as a matter of law that if the plaintiff could use the time effectively for his or her own purposes, then the plaintiff was not entitled to recover. Id. Additionally, in determining the proper circumstances for which compensation is required for on-call time, the Halferty court stated that "[e]mployees who have received compensation for idle time generally have had almost no freedom at all." Id, at 1190.
"[T]he 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." Id. at 1189. "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." Bright, 934 F.2d 677. If a plaintiff is clearly able to use "on-call time effectively for [plaintiff's] own personal purposes," then the on-call time is non-working time. Id. at 677-78.
In this case, Plaintiff admits to being able to perform a myriad of personal activities while on call. See Def. Br. at 7 (citing to Oral Deposition of Sharon Edmiston of May 19, 2003). Consistent with the Fifth Circuit's reasoning in Bright and Halferty, setting out examples of what courts have held to embody substantially the same flexibility and freedoms as Plaintiff was allowed, this Court finds that Plaintiff was clearly able to use her on-call time effectively for her own purposes.
The deposition testimony, from pages thirty-five to forty-four (pp. 63-72 of Def. Appendix), shows that Plaintiff was able to do yard work, laundry, cooking, go grocery shopping, go clothes shopping, go to the pharmacy, go to the dentist or doctor, get vehicle worked on, visit with friends and family, go to Abilene or Brownwood shopping, pursue personal hobbies, host family and friends in her house, participate in personal phone calls, watch television, read books, listen to music, and go out on dates to dinner and/or the movies either in Coleman or out of town.
The only restrictions that were placed on Plaintiff regarding the on-call time were that (1) she be able to answer a call within 5 to 10 minutes and (2) she not drink alcohol or take prescription drugs. Plaintiff testified that she is "not a drinker" of alcohol and therefore the restriction of "not being able to drink at all and go on the job for Skinny's" did not really apply to her. See Def. App. at 27. As pointed out in Defendant's Brief, Plaintiff could also seek assistance from her supervisor or the assistant manager if Plaintiff could not handle calls for some reason. See Def. App. at 60-2.
In Bright, the plaintiff was also restricted regarding on-call time in that Bright was required (1) not to be more than approximately 20 minutes from the store, (2) not to consume excessive amounts of alcohol or be impaired, and (3) always to be reachable by beeper, Bright was "free to be at his home or at any place or places he chose" so long as he was able to be reached by beeper, arrive within approximately twenty minutes, and not be drunk. Bright, 934 F.2d at 676. The Bright court also noted that a 15— to 20-minute response time in Norton v. Worthen Van Service, Inc., 839 F.2d 653 (10th Cir. 1988), was not considered too restrictive. Bright, 934 F.2d at 678. Given that Plaintiff's employment for Defendant occurred in Coleman, Texas, it is unlikely that an approximate response time of 10 minutes would unduly restrict Plaintiff's freedom of movement for personal use throughout the town. Although such a restriction may have been somewhat confining, "the FLSA's overtime provisions are more narrowly focused than being simply directed at requiring extra compensation for oppressive or confining conditions of employment." Id..
Therefore, this Court finds that the restrictions on Plaintiff were not so unlike the restrictions in Bright or the other cases cited in Bright, which were held not to require compensation for on-call time, as to warrant a different finding. For this reason, and because the Plaintiff was clearly able to use her on-call time effectively for her own purposes, the Court finds as a matter of law that Plaintiff is not owed compensation for the on-call time where she was not actually called, OFF THE CLOCK TIME
As stated above, Section 7 of the FLSA requires that an employee be compensated for working in excess of forty hours per workweek at a rate of one and one-half times the regular rate at which he is employed. 29 U.S.C. § 207(a)(1).
Plaintiff stated in her deposition testimony that she worked 10 to 20 additional hours per week for which she was not compensated. See Pl. App. at 15, 19. However, Plaintiff also stated in her deposition testimony that while on call she would receive approximately 10 calls per week. See Def. App. at 48. Plaintiff further stated that she was able to handle half (5) of the calls over the phone in 5 minutes or less, while the other half (5) would each require anywhere from 10 to 60 minutes of the Plaintiff's time working at the store. Id. at 49. The evidence before this Court is not clear as to whether the first statement of spending an average of 10 to 20 uncompensated hours per week at the store is in conflict with the second statement of going down to the store approximately 5 times per week for 10 to 60 minutes each. The second statement would amount to a total of only 50 minutes to 5 hours per week. This amount contradicts the 10-to 20-hour-per-week amount in the first statement. Regardless of how the time is determined, the alleged time spent was time worked for which Plaintiff was uncompensated.
Plaintiff has pleaded that she worked 62.5 hours per week of uncompensated time beyond her normal workweek hours. This number is far in excess of either amount advanced in Plaintiff's deposition testimony. The 62.5 amount likely included "on-call" time for which Plaintiff was not actually called. As addressed in this Order, such time is not compensable under the circumstances of this case.
Defendant asserts that the uncompensated time was not recorded in the time sheets submitted by Plaintiff, and therefore Defendant was unaware of the "off the clock" time worked and should as a matter of law be entitled to summary judgment. Defendant alleges Plaintiff knew that working "off the clock" was against Defendant's policy, and she was required as manager to keep an accurate log of time worked by all employees, including herself. The Court assumes Defendant advances this argument as an estoppel defense. Defendant further asserts that Plaintiff can not prove Defendant had actual or constructive knowledge as to the "off the clock" time worked because access to information has been held not to constitute constructive knowledge that a plaintiff is working overtime.
Equitable estoppel
A very similar argument was raised by a defendant in Cates v. Meldisco K-M 3730 Beltline Road, Texas, Inc., 1997 WL 118418 (N.D. Tex. 1997) (Fitzwater, J.). An employer that knows or has reason to believe that the reported information claimed in the time sheets is inaccurate cannot claim that the employee is estopped from alleging that she had worked more hours than acknowledged. See Brumbelow v. Quality Mills, Inc., 463 F.2d 1324, 1327 (5th Cir. 1972). In order to prevail on summary judgment, Defendant must show that there is no genuine issue of fact as to Defendant's knowledge that Plaintiff was working overtime. See McConnell v. Thompson Newspapers Inc., 802 F. Supp. 1484, 1506 (E.D. Tex. 1992). If an employer has knowledge that an employee is performing overtime work, then it is required to compensate the employee regardless of the reason why the employee is working. See 29 C.F.R. § 785.11. In reviewing deposition testimony and averments, courts are not to determine credibility questions at the summary-judgment stage of proceedings. See Dibidale of La., Inc. v. Am. Bank Trust Co., 916 F.2d 300, 307-08 (5th Cir. 1990).
The Cates case is highly probative to the case at hand. In Cates, the plaintiff was a manager who claimed he regularly under-recorded his hours to remain within budget for the payroll. See Cates at * 1. The defendant in Cates maintained that Cates should be equitably estopped from bringing the claim because he failed to report his overtime properly on the time sheets and that Cates could not show that the defendant knew Cates was working the overtime hours. Id. at *2.
Plaintiff's deposition testimony indicates that District Manager Debbie Stanford was aware that Plaintiff was working "off the clock":
Q. [W]ould I be correct that the only reason you didn't turn in the remainder of those hours is because of what you were told by Debbie Stanford?
A. Yes
Pl. App. at 19.
Q. Okay. And you have described that for us here today, have you not, what she told you?
A. Yes, sir.
Def. App. at 106.
Q. Who told you this?
A. It is store policy, They give you so many hours a week that you can have employees there.
Q. All right. Who told you these things about the on-call hours not being compensated that you just described? Was that Debbie Stanford?
A. I am not sure I understand that.
Q. Okay, You said that you had a budget to work in, you had so many hours allotted and that you would go down and work and cover for someone and you could punch in for that but you couldn't punch in for the 10 to 20 hours that you went down there and did other things. Okay. Who told you you could not?
A. Debbie told me to watch my budget hours and not go over my hours that were allotted.
Def. App. at 96.
This evidence at least raises a fact question on the issue of whether Plaintiff was informed by Defendant's District Manager to remain within budget for the hours worked. There is a question as to whether such a policy existed and whether Debbie Stanford was aware of regular "off the clock" time being worked by Plaintiff. Therefore, the evidence presents a genuine issue of material fact that, if taken as true, Plaintiff would not be equitably estopped from alleging she worked more hours than acknowledged.
Defendant's knowledge of "off the clock" time
Defendant relies heavily on Newton v. City of Henderson, 47 F.3d 746, 749 (5th Cir. 1995), for the proposition that as a matter of law, access to time sheet information by Debbie Stanford does not constitute constructive knowledge that the Plaintiff was working overtime. See Def. Br. at 4-5. However, the factors in Newton are not present here. The Newton court also stated "Newton's payroll forms would not be reliable indicators of the number of hours worked, if there was evidence to support the conclusion that the city encouraged or forced Newton to submit incorrect time sheets." Newton, 47 F.3d at 750 (emphasis added). This Court finds there is evidence, as indicated by the deposition testimony, to support the conclusion that Plaintiff's supervisors encouraged her to remain within the allotted hours budgeted, thereby encouraging the submission of incorrect time sheets. Therefore, this Court finds that Plaintiff's payroll forms are not reliable indicators of the hours she worked.
Additionally, in Newton, the defendant could reasonably have assumed that Newton was not working overtime based on the practice of taking "flex time" to compensate for unscheduled hours. Id. at 749, Here, Plaintiff had no similar opportunities for "flex time" that would have allowed the assumption she was being compensated for overtime. See Cates at *4 (citing Newton, 47 F.3d at 749). The deposition testimony, supra, also raises the question of whether or not it was Defendant's "store policy" to allow only a certain number of hours for a store manager to have store employees working. See Def. App. at 96.
Furthermore, a court may determine from summary judgment evidence that the Defendant had knowledge Plaintiff was working after her shift. See Can v. City of Beaumont, Texas, 950 F. Supp. 1317 (E.D. Tex. 1997) (Schell, J.). Where a plaintiff is working after shift, the defendant "knew and had reason to believe that the work was being performed," even though the plaintiff did not submit overtime forms for the work. Id. at 1323. A defendant is imputed to have knowledge of overtime work when it approves and requires that the work be done. Id Here, there is evidence that Defendant not only approved of the work being done when Plaintiff was called to the store, but that Defendant also required Plaintiff to perform such a duty as store manager.
The Court finds that a genuine question of fact exists as to whether Defendant's District Manager had knowledge of the "off the clock" time. And further, a question of material fact exists as to whether Defendant maintained a "store policy" of limiting the hours a store manager was allotted each week, thereby negating any reliance the Defendant may have placed upon Plaintiff's under-represented hours.
CONCLUSION
The Court finds that because the Plaintiff was clearly able to use her on-call time effectively for her own purposes, as a matter of law Plaintiff is not owed compensation for the on-call time where she was not actually called. Therefore, this Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's claims for "on-call" time where she was not actually called.
However, the Court also finds that a genuine question of material fact exists as to Defendant's knowledge of the alleged "off the clock" time. And further, a question of material fact exists as to whether Defendant maintained a "store policy" of limiting the hours a store manager was allotted each week, thereby negating any reliance the Defendant may have placed upon Plaintiff's under-represented hours. Therefore, this Court DENIES Defendant's Motion for Summary Judgment as to Plaintiff's claims for "off the clock" time. This Court, however, makes no finding as to whether Plaintiff actually worked the alleged "off the clock" hours or as to the number of hours allegedly worked for which Plaintiff was not compensated.
SO ORDERED