                                                                                            March 26 2013


                                           DA 12-0207

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2013 MT 78



MATT STUBBLEFIELD, JOHN KNAPP,
and NEIL COURTIS,

              Plaintiffs and Appellants,

         v.

TOWN OF WEST YELLOWSTONE,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. 08-807AX
                        Honorable John C. Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Stephen C. Pohl, Paul Grigsby, Attorneys at Law, Bozeman, Montana


                For Appellee:

                        James D. McKenna, Michael Q. Davis, Jr., McKenna Law, P.C., Bozeman,
                        Montana



                                                    Submitted on Briefs: November 21, 2012

                                                               Decided: March 26, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Plaintiffs Matt Stubblefield, John Knapp, and Neil Courtis (plaintiffs), police officers

in West Yellowstone, Montana, appeal the District Court’s denial of their combined motions

to amend the judgment and for a new trial. We affirm.

¶2     We restate the issue on appeal as follows:

¶3     1. Did the District Court err by denying the plaintiffs’ combined M. R. Civ. P. 59

motions for a new trial and to amend the judgment?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶4     Plaintiffs are employed as police officers by the defendant Town of West

Yellowstone, Montana (the Town). West Yellowstone is a small community in Gallatin

County and serves as the western entrance to Yellowstone National Park. West Yellowstone

receives thousands, if not millions, of visitors during the summer months due to its proximity

to Yellowstone. During the off-season, however, services and amenities are limited,

expensive, or altogether unavailable. Despite its relative remoteness, the town is attractive

for its proximity to a variety of outdoor activities.

¶5     Officer Stubblefield has been employed as police officer in West Yellowstone since

2004, while Officers Knapp and Courtis have been employed by the Town since 2007. The

plaintiffs largely relocated to West Yellowstone to partake in its recreational opportunities.

However, the plaintiffs contend that the Town’s on-call policy for police officers prior to

2009 was so restrictive that they could not engage in personal activities between shifts. They



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thus claim that they should have been compensated for their time spent on call under the Fair

Labor Standards Act, § 29 U.S.C. 201, et seq. (2011) (FLSA).

¶6     The following facts concerning the on-call policy are undisputed. During the relevant

time frame, the Town generally employed four police officers. One police officer was on

duty at all times, with one officer working the day shift (6 a.m. to 6 p.m.) and another

working the night shift (6 p.m. to 6 a.m.). Work periods lasted for two weeks, and officers

worked three 12-hour shifts one week and four 12-hour shifts the next, totaling 84 hours of

work per 14-day period.1 From the beginning of their employment until a change in the

collective bargaining agreement in March 2009, each officer was also required to be on-call

for the 12 hours immediately preceding their shift. Thus, if an officer worked the Monday,

Tuesday, and Wednesday day shifts, he would be on call Sunday, Monday, and Tuesday

nights from 6 p.m. until the start of his shift at 6 a.m. the next morning.

¶7     This on-call requirement stemmed from the Town’s policies requiring an additional

police officer to provide backup for certain more-dangerous situations like crimes in

progress, most disorderly conduct calls, and partner or family member assault. Other

requests for backup were made according to the responding officer’s discretion. Because the

on-call requirement was intended to provide backup for potentially dangerous situations, the

on-call officer was provided a cell phone and expected to be reachable at all times. This

responsiveness required the plaintiffs to stay within cell service areas and keep their phone

ringers loud enough to wake them if a call came while they were sleeping. The officers were



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also apparently expected to respond immediately, be in some sort of clothing that identified

them as police officers, to have their police gear, and to respond in a patrol car. If an officer

was actually called out while on call, they would receive a minimum of 2.5 hours of

overtime pay. The officers were not otherwise compensated for their on-call time.

¶8     The parties did dispute the nature and length of the response-time requirement. The

plaintiffs claimed that unwritten policies required a five to ten minute response. Witnesses

for the Town, including the Chief of Police, claimed the response time requirement was

flexible, informal, and often longer. However, all parties agreed that the small size of West

Yellowstone allowed for generally quick response times.

¶9     The plaintiffs brought a complaint against the Town under the FLSA on October 6,

2008 alleging that they should be compensated for all their time spent on call, and not just

for call outs. Plaintiffs specifically alleged that the on-call rules were so restrictive that the

on-call time was spent predominantly for the Town’s benefit and, thus, they should have

been compensated. Plaintiffs claimed they were owed compensation in the form of overtime

pay for their on-call hours. Plaintiffs also claimed liquidated damages pursuant to 29 U.S.C.

§ 216, interest, costs, and attorney fees.

¶10    A jury trial was conducted during the week of November 14-17, 2011. Both sides

presented documentary and testimonial evidence concerning the details of the Town’s on-call

policy and the plaintiffs’ activities during their on-call shifts. The plaintiffs generally


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        Under exception 7(k) to the Fair Labor Standards Act, § 29 U.S.C. 207(k), police officers may
work more than 40 hours per week without incurring overtime.
                                                  4
claimed that the on-call requirements hindered their sleep, prevented them from running

errands or doing certain chores around the house, interfered with their relationships, denied

them the opportunity to hold second jobs, and prevented them from recreating outside West

Yellowstone between shifts. As the Town no longer requires police officers to be on-call

between shifts, the plaintiffs claimed that they can now engage in personal and family

activities that would have formerly been reserved for their off-duty days. The plaintiffs

repeatedly highlighted the isolated nature of West Yellowstone and the immediate response

requirement for the on-call officer, claiming that these factors restricted their ability to

engage in personal activities and rendered their on-call time primarily for the Town’s benefit.

¶11     The plaintiffs also argued that their on-call hours were spent primarily for the benefit

of the town by contending that their availability for backup furthered important public safety

interests. The plaintiffs claimed that the elimination of the mandatory on-call requirement in

March of 2009 left the Town, public, and on-duty officers less safe. The testimony of

several of the dispatchers in West Yellowstone similarly indicated that the elimination of the

on-call requirement made their jobs more stressful and potentially rendered the town less

safe.

¶12     The Town’s evidence largely questioned the plaintiffs’ claimed inability to engage in

personal activities or sleep. The Town sought to refute the allegedly burdensome response

requirements by eliciting testimony that officers had previously either failed to show up for a

call or had shown up late without any consequences. The Town also developed testimony

that the plaintiffs received seven days off out of every 14 day work period, that other
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agencies could potentially provide backup if the on-call officer didn’t respond, and that a

plaintiff believed the compensation rate for call outs was fair. The Town further claimed that

the infrequent nature of calls lessened the burden of on-call shifts. A summary of the

plaintiffs’ timesheets proffered by the Town showed that Sergeant Stubblefield was called

out 18 times in 609 on-call shifts, that Officer Knapp was called out three times in 234 on-

call shifts, and that Officer Courtis was called out six times in 186 on-call shifts. Each of the

plaintiffs disputed these calculations, but they did not offer any evidence supporting their

belief that call outs were more frequent.

¶13    After reviewing the evidence and testimony, the jury rendered a verdict in favor of the

Town on November 17, 2011. The court entered judgment on December 7, 2011. The

plaintiffs subsequently filed a Combined Motion to Amend Judgment and Motion for New

Trial (the Motion) pursuant to M. R. Civ. P. 59(a) and (e) on January 4, 2012. The Motion

argued that there was insufficient evidence to support the jury’s verdict. The Motion largely

summarized the evidence the plaintiffs presented at trial and applied these facts to the law

contained in the jury instructions. The Motion essentially argued that the plaintiffs supported

their contention with a “great quantity” of “uncontroverted” evidence while arguing that the

Town only offered evidence of how the plaintiffs spent their days off. As relief, the Motion

requested that the court “amend the judgment and rule that the Plaintiffs’ time spent while

on-call was compensable” and order a new trial to determine damages and the statute of

limitations. The Motion alternatively requested that the court order a new trial if it declined



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to amend the judgment. The court denied the Motion in a February 29, 2012, order, and this

appeal followed.

                                STANDARD OF REVIEW

¶14    Where the basis of a Rule 59 motion is insufficiency of the evidence, we have

clarified that our standard of review is de novo. Giambra v. Kelsey, 2007 MT 158, ¶ 26, 338

Mont. 19, 162 P.3d 134. This is because the assessment of the sufficiency of the evidence

and the application of the law to that assessment is a question of law that cannot involve

discretion. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 19, 336 Mont. 105, 152 P.3d 727.

An assessment of the sufficiency of the evidence is a question of law and no deference can

be given to the trial court. Johnson, ¶ 19. “There either is, or is not, sufficient evidence to

convict, and the determination is not a matter of discretion,” regardless of whether the appeal

is from the denial of a M. R. Civ. P. 59(a) or (e) motion. State v. Swann, 2007 MT 126, ¶ 19,

337 Mont. 326, 160 P.3d 511.

¶15    In the course of our review of whether the evidence was sufficient to support the

jury’s verdict, we do not ask whether the jury made the right decision. Wise v. Ford Motor

Co., 284 Mont. 336, 343, 943 P.2d 1310 (1997). Instead, we only ask whether there is

substantial credible evidence in the record to support the jury’s verdict. Wise, 284 Mont. at

343, 943 P.2d at 1314. Substantial credible evidence is evidence that a reasonable mind

might accept as adequate to support a conclusion. C. Haydon Ltd. v. Mont. Min. Props., Inc.,

286 Mont. 138, 151, 951 P.2d 46 (1997). This evidence “may be less than a preponderance

of the evidence, but must be more than a ‘mere scintilla.’ ” Murray v. Whitcraft, 2012 MT
                                              7
298, ¶ 7, 367 Mont. 364, 291 P. 3d 587 (quoting Styren Farms, Inc. v. Roos, 2011 MT 299,

¶ 11, 363 Mont. 41, 265 P.3d 1230). A jury’s verdict may be supported by substantial

credible evidence even if it is contradicted by other evidence or inherently weak. D.R. Four

Beat Alliance, LLC v. Sierra Prod. Co., 2009 MT 319, ¶ 23, 352 Mont. 435, 218 P.3d 827

(quoting Tinker v. Mont. State Fund, 2009 MT 218, ¶ 36, 351 Mont. 305, 211 P.3d 194).

                                       DISCUSSION

¶16    On appeal, the plaintiffs maintain their argument that substantial evidence did not

support the jury’s verdict in favor of the Town. The plaintiffs further term the jury’s

decision “baffling” and “inconsistent” in light of the District Court’s decision following our

remand as directed in Sands v. Town of W. Yellowstone, 2007 MT 110, 337 Mont. 209, 158

P.3d 432. We find both arguments unpersuasive, as outlined below.

I. SUFFICIENCY OF THE EVIDENCE

¶17    The United State Supreme Court has held that time spent waiting “on call” is

compensable if the waiting time is spent “primarily for the benefit of the employer and his

business.” Armour & Co. v. Wantock, 323 U.S. 126, 132, 65 S. Ct. 165 (1944). “Whether

time is spent predominately for the employer’s benefit or for the employee’s is a question

dependent upon all the circumstances of the case.” Armour & Co., 323 U.S. at 133. The

key, according to the Court, is whether the employee was engaged to wait, which is

compensable, or whether the employee waited to be engaged, which is not compensable.

Skidmore v. Swift & Co., 323 U.S. 134, 137-39, 65 S. Ct. 161 (1944). The jury instructions

related these holdings. The instructions also listed a variety of factors that courts have found
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relevant in determining whether on-call time is compensable. These factors included: (1) the

extent to which there was an on-premises living requirement; (2) the extent to which there

were excessive geographical restrictions on employee movements; (3) the extent to which

the frequency of calls was unduly restrictive; (4) the extent to which a fixed time limit for

on-call response was unduly restrictive; (5) the extent to which employees could easily trade

on-call responsibilities; (6) the extent to which the use of a pager or cell phone could ease

restrictions; (7) the duration and danger of calls; (8) the extent to which employees benefitted

financially from the on-call policy; (9) the extent to which the policy was based upon an

agreement between the parties; and (10) the extent to which on-call employees engaged in

personal activities during on-call time. The court instructed that no one factor was

dispositive and neither party contests these instructions on appeal. The jury determined that,

based on the evidence presented and the applicable legal standards, the plaintiffs’ on-call

time was not compensable.

¶18    The plaintiffs claim that this verdict was not supported by substantial evidence and

that the jury wrongly ignored credible evidence that the on-call time was primarily for the

Town’s benefit. In support, the plaintiffs largely recount the evidence they offered at trial

and apply this evidence to the law contained in the jury instructions. However, “[a] jury's

verdict which is challenged as not supported by the evidence may be overturned only in the

complete absence of any credible evidence to support the verdict.” Papich v. Quality Life

Concepts, Inc., 2004 MT 116, ¶ 29, 321 Mont. 156, 91 P.3d 553. As noted, this substantial

evidence need be only more than a mere scintilla of evidence, need not be more than a
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preponderance, and may be based on weak and conflicting evidence. Campbell v. Canty,

1998 MT 278, ¶ 18, 291 Mont. 398, 969 P.2d 268. All evidence and the inferences drawn

therefrom must be considered in the light most favorable to the adverse party, the Town.

Campbell, ¶ 19. Essentially, appellants may not use a Rule 59 motion to relitigate their

claim and we will not disturb a jury’s findings “unless they are inherently impossible to

believe.” Wise, 284 Mont. at 339, 943 P.2d at 1312.

¶19    While we review the sufficiency of the evidence de novo, it is clear from the

foregoing that this Court does not invade the province of the jury and weigh the credibility or

persuasiveness of the evidence presented. We do not second-guess or seek to replace the

jury. We merely determine whether “substantial” evidence—more than a scintilla but

perhaps less than a preponderance—supported the jury’s verdict. Campbell, ¶ 18. Here, that

translates to at least some evidence that the plaintiffs’ time was not spent primarily for the

benefit of the town, or that the plaintiffs were waiting to be engaged. Sands, ¶ 19. The

question, then, is not whether substantial evidence supported the plaintiffs’ contention;

rather, it is whether some evidence supported the proposition that the plaintiffs’ time was

spent primarily for their own benefit. Indeed, under our conception of what constitutes

substantial evidence, there may be a scintilla of evidence supporting several contentions. It

is for the jury to weigh these competing bits of evidence and determine which is more

credible. See Papich, ¶ 29; Campbell, ¶ 19; Wise, 284 Mont. at 339, 943 P.2d at 1312.

¶20    Both sides presented evidence to the jury. The Town called three witnesses, proffered

ten exhibits, and elicited testimony through the cross-examination of the plaintiffs and their
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witnesses. This “substantial” evidence demonstrated that the plaintiffs spent much of their

on-call time asleep, eating meals, doing various household chores, or watching movies.

Officer Conlon, who was not a plaintiff, testified that his on-call shifts were primarily spent

going to movies, going to dinner, and going to bed. The plaintiffs testified that they

generally slept and ate meals during their on-call shifts, but also stated their sleep was often

interrupted by calls not related to their on-call duty. The Town also presented “substantial”

evidence that the officers received few call-outs and were not disciplined in the instances

where they missed a call. There was not an on-premises living requirement for the plaintiffs,

but former Police Chief William Pronovost did tell Sergeant Stubblefield he could not live

outside town if it would inhibit his ability to respond to calls and the plaintiffs generally

stayed within West Yellowstone during their on-call shifts. The plaintiffs thought the

compensation rate for actual call outs was fair, but wished they would have been called out

more. The plaintiffs were apparently able to take vacation and trade shifts but there were

some restrictions.

¶21    The jury received evidence from both the Town and the plaintiffs that related to the

factors listed in the jury instructions. The Town challenged the plaintiffs’ credibility through

cross-examination. The jury was free to judge the credibility and persuasiveness of the

testimony and evidence submitted. The Town presented more than a mere scintilla of

evidence that would support the jury’s verdict. The jury’s verdict was therefore based on

“substantial” evidence. Campbell, ¶ 18. The plaintiffs have failed to show that the jury’s



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verdict is either inherently impossible to believe or that there was a complete absence of

evidence in support of the verdict. Campbell, ¶ 19.

II. RELEVANCE OF SANDS

¶22    Plaintiffs also claim that because “[t]his case is a direct descendant of” Sands v. Town

of W. Yellowstone, 2007 MT 110, 337 Mont. 209, 158 P.3d 432, we must either order the

District Court to enter judgment in favor of the plaintiffs or order a new trial. Like the

present case, Sands dealt with a FLSA claim against the Town of West Yellowstone. Unlike

the present case, the plaintiffs prevailed on their FLSA claim after a bench trial. The

plaintiffs essentially claim that this success, when coupled with the similarities between the

cases, requires us to reverse the court’s judgment and the jury’s verdict. However, we are

not persuaded by plaintiffs’ contention that this case is “essentially a retrial” of Sands.

¶23    Sands dealt with a FLSA claim brought by EMTs against the Town of West

Yellowstone in 2003. The plaintiffs contested the 1/4 wages the Town paid for the hours

they spent on call but not actually responding to a call. Following a bench trial, the district

court entered judgment for the plaintiff EMTs. Some of the factors the district court

considered to determine compensability mirror the factors presented to the jury in this case.

For example, the Sands court considered response time requirements, whether employees

could use on-call time for personal pursuits, the frequency and duration of call-outs, and

geographic restrictions on employees.

¶24    The district court in Sands applied these similar factors to the evidence to determine

that the plaintiffs should have been fully compensated for their on-call time. Some of the
                                              12
facts the court considered in this analysis are similar to the facts in the present case. For

instance, the EMTs were paid for their “response” time when they responded to a call, but

were not fully compensated for all their on-call hours. The EMTs similarly worked 12-hour

on-call shifts and were required to respond within five to seven minutes in uniform. Sands,

¶ 7. The Sands plaintiffs also testified that the on-call requirements interrupted their sleep

and interfered with their ability to run personal errands, travel for services or shopping, or

recreate.

¶25    Despite these initial similarities, the Sands case is not as “identical” to the present

case as the plaintiffs allege. The foremost difference is the fact that the case on remand was

conducted as a bench trial. The Sands EMTs also operated under a different collective

bargaining agreement. Sands, ¶ 5. Moreover, if an EMT failed to respond in the required

five to seven minute range, they would be disciplined. Sands, ¶ 7. Here, there is no

evidence that any police officer has ever been disciplined for failing to immediately respond

to a call. The Sands plaintiffs also testified that trading on-call hours was difficult, if not

impossible.    Here, the plaintiffs testified that trading shifts was at least possible.

Significantly, the Sands plaintiffs received call-outs almost 50% of the time they were on

call. In the present case, the plaintiffs were rarely called out.

¶26    While Sands presented a superficially similar claim, involving EMTs in West

Yellowstone seeking compensation for on-call time, the case is not “identical” to the

plaintiffs’ claim in the present case.     The Sands plaintiffs worked under a separate

agreement, were subject to different response requirements, and received significantly more
                                              13
call outs. In addition, the district court’s order in Sands was, somewhat surprisingly,

admitted into evidence at trial. The jury had an opportunity to compare the Sands decision to

the present case and they apparently decided that the cases were distinguishable. The jury

was free to do this, just as they are free to weigh the persuasiveness of any evidence

presented at trial. See Wise, 284 Mont. at 339, 943 P.2d at 1312 (“[T]he credibility and

weight given to the evidence is in the jury’s province and we will not disturb the jury’s

findings unless they are inherently impossible to believe.”).

¶27    It is important to emphasize that our review of an appeal alleging insufficiency of the

evidence is confined to a determination of whether substantial evidence supported the jury’s

verdict. Campbell, ¶ 17. If there was evidence that a reasonable mind might accept as

adequate to support the jury’s conclusion, our review ends. Campbell, ¶ 18. A prior district

court’s determination of an arguably similar case has no bearing on this analysis. The jury

was free to consider, and reject, the persuasiveness of the Sands decision just as it could

consider, and reject, the persuasiveness of the plaintiffs’ testimony. Because there was

sufficient evidence to support the jury’s verdict, we affirm the District Court’s denial of the

Motion, regardless of Sands.

                                      CONCLUSION

¶28    Because we conclude that there was sufficient evidence to support the jury’s verdict in

favor of the Town, we affirm.

¶29    Affirmed.

                                                   /S/ MICHAEL E WHEAT
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We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




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