                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-12-1998

Ingram v. Bucks County
Precedential or Non-Precedential:

Docket 97-1360




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Recommended Citation
"Ingram v. Bucks County" (1998). 1998 Decisions. Paper 108.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/108


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Filed May 12, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1360

GENE INGRAM; ROBERT REINCKE; JOHN R.
BLANCHARD; LANCE D. CARLEN; THOMAS J. CEVASCO;
JAMES H. COCHRAN; RONALD H. DUFFY; GERALD J.
GAITTENS; SALVATORE GARGIULO; MICHAEL R.
GORMAN; OLIVER A. GROMAN; CHARLES R.
HAVERSTOCK; WILEY A. HERRING; GARY KILLIAN;
JOHN A. KIRKPATRICK; THEODORE MACKNIK, SR.;
JOHN T. MILOREY; BERNIE PEAK; WAYNE POSTEN;
BARRINGTON G. RAMSAY; MICHAEL S. REMICK;
DAVID J. RINKER; JOHN P. SANTOS; STEPHEN R.
SCHUELLER; DAVID P. SHALLCROSS; GARY J. SIBEL;
GEORGE B. SPICER; TAMMY SWINESBURG; LINDA S.
UMBERGER; THOMAS J. WALTMAN; JOSEPH A. WHITE;
OLIVER WILSON, JR.

v.

COUNTY OF BUCKS

John Blanchard, James Cochran, Salvatore Gargiulo,
Oliver Groman, Jr., Gary Killian, John Kirkpatrick,
Tammy Swinesburg-Lall, Theodore MacKnik, Sr., John
Milorey, Bernie Peak, Wayne Posten, Robert Reinecke, Jr.,
Michael Remick, David Rinker, John Santos, Steven
Schueller, David Shallcross, Gary Sibel, George Spicer,
Linda Umberger, Thomas Waltman, Ronald Duffy,
Appellants

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 95-02122)

Argued on December 11, 1997
Before: NYGAARD and ALITO, Circuit Judges, and
DEBEVOISE, Senior District Judge*

(Filed: May 12, 1998)

       David J. Truelove, Esquire
        (ARGUED)
       Curtin and Heefner
       250 North Pennsylvania Avenue
       P.O. Box 217
       Morrisville, Pennsylvania 19067
       Counsel for Appellants

       Frank A. Chernak, Esquire
        (ARGUED)
       Howard J. Bashman, Esquire
       Ellen K. Pomfret, Esquire
       Montgomery, McCracken, Walker &
       Rhoads, LLP
       123 South Broad Street
       Philadelphia, PA 19109-1029
       Counsel for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellants are Bucks County Deputy Sheriffs whose
responsibilities include transporting prisoners, providing
courtroom security, and serving bench warrants and
summonses. The deputies filed suit under the Fair Labor
Standards Act, 29 U.S.C. SS 207, 216, to recover overtime
pay for time spent off premises and waiting on-call. The
deputies contend that the district court erred by concluding
_________________________________________________________________

*The Honorable Dickinson R. Debevoise, Senior District Judge of the
United States District Court for the District of New Jersey sitting by
designation.

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that they are not entitled to overtime compensation for time
spent off premises and waiting on-call and by granting
summary judgment in favor of the defendants. We will
affirm.

I. Facts

The historical facts are not in dispute. On weekdays,
most deputies are assigned to the 7:00 a.m. - 3:00 p.m.
shift. Two deputies at a time rotate into the 3:00 p.m. -
11:00 p.m shift. When assigned the second shift, the
deputy is required to be on-call from 11:00 p.m- 7:00 a.m.
and for twenty-four hours a day on Saturday and Sunday.
Although there is no written department policy regarding a
deputy's obligations while on-call, a deputy is not required
to remain at the sheriff 's office or stay in uniform. The
deputy must carry a pager if not at home, and if paged,
must report to work within a reasonable time. The deputies'
employment terms are subject to a collective bargaining
agreement between the county and AFSCME District
Council 88. The agreement is not material to our decision.

II. Standard of Review

A district court's grant of summary judgment is subject
to plenary review. Public Interest Research of N.J. v. Powell
Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d Cir. 1990).

III. Discussion

The district court concluded that the deputies' on-call
time was not compensable because it did not limit their
personal activities to such a degree that their time was
spent primarily for the county's benefit. The district court
record shows that during the on-call time, the deputies
were able to engage in personal activities, and although
their activities were somewhat limited by their on-call
status, the limits did not justify compensation.

The deputies make three arguments for reversal. First,
they claim that this matter was not appropriately decided
by summary judgment, noting that whether acts are
compensable is a fact-intensive inquiry. Next, they argue

                               3
that the district court erred by concluding that their
personal activities were not limited enough to require
compensation under the Fair Labor Standards Act. Finally,
the deputies contend that the collective bargaining
agreement should not be considered by the district court
because they have been dissatisfied with their bargaining
representative, and as a result most of the deputies are not
dues-paying union members.

A.

Regarding the appellants' first argument, it is true that
the issue of how a plaintiff spends his on-call time is one
of fact and, therefore, cannot be resolved on summary
judgment. Icicle Seafood, Inc. v. Worthington, 475 U.S. 709,
714, 106 S. Ct. 1527, 1530 (1986). However, once there is
no genuine issue of material fact as to how a plaintiff
spends his on-call time, the determination of whether a
plaintiff 's activities exclude him "from the overtime benefits
of the FLSA is a question of law," which can properly be
resolved on summary judgment. See, e.g., Renfro v. City of
Emporia, 948 F.2d 1529, 1536 (10th Cir. 1991) (relying on
undisputed facts to grant summary judgment); Berry v.
County of Sonoma, 30 F.3d 1174, 1180 (9th Cir. 1994)
(Whether "limitations on the employees' personal activities
while on-call are such that on-call waiting time would be
considered compensable overtime under the FLSA is a
question of law.").

B.

Turning to the deputies' second argument, there is no
dispute regarding how the deputies spent their on-call time.
Nonetheless, the deputies argue that the district court did
not construe the evidence in their favor, as required by
Federal Rule of Civil Procedure 56. The deputies' arguments
focus on the district court's application of the undisputed
facts to the test for compensability set forth by the
Department of Labor and other Courts of Appeals. The
deputies contend that the district court reached the
incorrect conclusion based on these facts.

                               4
We are not persuaded. Simply because the issue before
the court is fact-sensitive does not mean that once
historical facts are undisputed, the court cannot reach a
conclusion based on those facts. Where there is no dispute
as to the historical facts, and the facts do not support the
contention that on-call time is working time, the court may
properly grant a motion for summary judgment. Bright v.
Houston Northwest Medical Center, 934 F.2d 671, 675 (5th
Cir. 1991) (en banc).

The Fair Labor Standards Act does not dictate whether
time spent waiting on-call, as opposed to time responding
to a call, is compensable. In companion cases, the Supreme
Court determined that on-call time can be compensable
under the Fair Labor Standards Act, but declined to
establish a bright line rule for compensability. See
Skidmore v. Swift, 323 U.S. 134, 65 S. Ct. 161 (1944);
Armour & Co. v. Wanteck, 323 U.S. 126, 65 S. Ct. 165
(1944). The Court held that "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." Armour, 323 U.S. at 133.

The Department of Labor promulgated regulations stating
that on-call time is compensable if the employee is required
to remain on premises, or if the employee, although not
required to remain on the employer's premises, finds his
time on-call away from the employer's premises is so
restricted that it interferes with personal pursuits. 29
C.F.R. S 553.221(c), (d). The Department of Labor's
regulation of the Fair Labor Standards Act is entitled to
substantial deference. Elizabeth Blackwell Health Center for
Women v. Knoll, 61 F.3d 170, 182 (3d Cir. 1995); See also
Skidmore, 323 U.S. at 139-40, 65 S. Ct. at 164; Ford Motor
Credit Co. v. Milhollin, 444 U.S. 555-56, 100 S. Ct. 790, 792
(1980). The pertinent portions of the regulation are as
follows:

       "(c) 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. For example, where a police station must be
       evacuated because of an electrical failure and the

                                5
       employees are expected to remain in the vicinity and
       return to work after the emergency has passed, the
       entire time spent away from the premises is
       compensable. The employees in this example cannot
       use the time for their personal pursuits.

       (d) An employee who is not required to remain on the
       employer's premises but is merely required to leave
       word at home or with company officials where he or
       she may be reached is not working while on call. Time
       spent at home on call may or may not be compensable
       depending on whether the restrictions placed on the
       employee preclude using the time for personal
       pursuits. Where, for example, a firefighter has returned
       home after the shift, with the understanding that he or
       she is expected to return to work in the event of the
       emergency in the night, such time spent at home is
       normally not compensable. On the other hand, where
       the conditions placed on the employee's activities are
       so restrictive that the employee cannot use the time
       effectively for personal pursuits, such time spent on
       call is compensable."

29 C.F.R. S553.221 (c), (d).

We have not considered the issue of whether time spent
waiting on-call is compensable under the Fair Labor
Standards Act. The resolution of this issue is fact-specific,
but there is no conflict among the Courts of Appeals
dealing with this specific issue. The Courts have used
various factors to weigh the level of interference with the
employee's private life. See, e.g., Berry v. Sonoma County,
30 F.3d 1174, 1183 (9th Cir. 1994) (seven factor analysis).
Four factors are significant to our consideration:first,
whether the employee may carry a beeper or leave home;
second, the frequency of calls and the nature of the
employer's demands; third, the employee's ability to
maintain a flexible on-call schedule and switch on-call
shifts; and fourth, whether the employee actually engaged
in personal activities during on-call time. If these factors
reveal onerous on-call policies and significant interference
with the employee's personal life, Courts have held that on-
call time is compensable. We cannot conclude that the
deputies' activities here are restricted to such a degree.

                               6
First, the deputies may carry a beeper or leave word
where they may be reached. The employee park rangers in
Cross v. Arkansas Forestry Commission, were required to
monitor a hand held radio at all times. 938 F.2d 912 (8th
Cir. 1991). The radio had limited range, and because the
employees were required to constantly monitor a hand
radio, the Court determined that the on-call time
significantly interfered with their private activities. The
Court concluded that in that situation, the on-call time was
compensable. In contrast, the turnpike employees in Martin
v. Ohio Turnpike Commission, 968 F.2d 606 (6th Cir. 1992),
were on-call to respond to accidents or severe weather that
interfered with traffic on the turnpike. When on call,
employees could wear a beeper or leave word where they
could be located. The Sixth Circuit held that on-call time
was not compensable because the turnpike employees'
freedom was not severely restricted by burdensome on-call
policies. The deputies here have the same freedom of
movement as the turnpike employees in Martin because
they can carry a beeper, and are not, like the employees in
Cross, required to monitor a radio.

Second, the frequency and urgency of calls to the
deputies do not preclude using their time for personal
pursuits. In Renfro v. City of Emporia, 948 F.2d 1529, 1537
(10th Cir. 1991), the Court determined that the on-call time
was compensable because the frequency of calls
significantly restricted personal schedule to the benefit of
the employer. The firefighters in Renfro, although not
required to remain on the premises while on call, were
required to report within twenty minutes of a call and were
called an average of three to five times a day. In contrast,
employees who are called to duty less frequently, with a
longer response time, can pursue personal activities with
minimal interference, and Courts have held that they
should not be compensated for on-call time under the
FLSA. See Gilligan v. City of Emporia, 986 F.2d 410, 412
(10th Cir. 1993) (employees called back less often than
once a day, and were given thirty minutes to one hour to
respond); Armitage v. City of Emporia, 982 F.2d 430, 432
(10th Cir. 1992) (police detectives called in on average less
than two times a week and were able to report to duty
within twenty minutes of responding to the page); Bright v.

                               7
Houston Northwest Medical Center, 934 F.2d 671 (5th Cir.
1991) (en banc) (biomedical equipment repair technician
called an average frequency of two times per week and two
to three times over the weekend required to report to the
hospital within twenty minutes of being paged.)

The deputies were not able to demonstrate that the
frequency of calls approached three to five calls to duty per
day like Renfro. Furthermore, even if the deputies had
created an issue regarding the frequency of calls, the
nature of duties such as prisoner transportation is not
comparable to the demands imposed upon the employees in
Cross and Renfro. The deputies are not required to report to
the sheriff's office in a fixed amount of time. Several
deputies testified that they have taken between 15 and 45
minutes before leaving home in response to a call, and no
deputy has been officially disciplined for responding late.
Under these circumstances, we agree with the district court
that the on-call policy was not overly restrictive with regard
to response time.

Third, the deputies ability to trade on-call shifts allowed
them to effectively use their time for personal pursuits. The
Court in Norton v. Worthen Van Services, Inc., 839 F.2d
653, 654-56 (10th Cir. 1988) held that on-call time was not
compensable, even though employees were subject to
disciplinary action if they failed to respond withinfifteen to
twenty minutes of a call, because employees could go
"unavailable" and maintain flexibility in their personal time.
In Renfro, on the other hand, shift trades were difficult, if
not impossible, to arrange, and the firefighters were subject
to discipline if they either failed to answer a call-back or
were late, and on-call time was compensable. Renfro, 948
F.2d at 1537. Here, the undisputed facts show that the
deputies could trade shifts to pursue personal activities
without interference.

Finally, the record reveals that the deputies have been
able to participate in personal activities while on-call. A
number of deputies testified that they engaged in such
activities as reading, watching television, doing housework,
shopping, gardening and playing with their children.
Moreover, some deputies have been able to attend little
league games, visit family and friends, and attend religious

                               8
services. We recognize that these activities may not
represent the full range of activities in which the deputies
would like to engage. However, we agree with the Fifth
Circuit that the test is not whether the employee has
"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 settled case law and the
administrative guidelines clearly reject." Bright, 934 F.2d at
677. See also Berry, 30 F.3d at 1185 ("The inquiry . . . is
not whether the [plaintiffs] are prevented from participating
in certain personal activities, but whether they actually
engage in personal activities during on-call shifts."). Since
the deputies were able to engage in numerous personal
activities while on-call, this factor weighs in favor of finding
the time non-compensable.

C.

The deputies' final argument is that the district court
improperly considered the terms of their collective
bargaining agreement to conclude that on-call time was
compensable, and argue that under McGrath v. City of
Philadelphia, 864 F. Supp. 466 (E.D. Pa. 1994), they cannot
bargain away legally guaranteed compensation under the
FLSA.

We need not reach this issue for two reasons. First,
because we have determined that compensation is not
required under the FLSA, the collective bargaining
representative did not bargain away something guaranteed
by the FLSA. Second, the district court specifically noted
that its consideration of this issue was not dispositive.
Instead, it stated that other Courts had considered
employee acquiescence to uncompensated on-call time as a
factor for consideration. See, e.g., Berry v. Sonoma County,
30 F.3d 1174, 1181 (9th Cir. 1994).

IV. Conclusion

In sum, and for the foregoing reasons, we will affirm the
summary judgment granted defendants and conclude that
the County did not violate the FLSA.

                               9
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               10
