                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       December 21, 2005
                            FOR THE TENTH CIRCUIT
                                                                          Clerk of Court


    BETTY HENDRICKS, individually
    and standing in the stead of other
    persons similarly situated; KAREN
    KIDD, individually and standing in the
    stead of other persons similarly                    No. 05-7021
    situated; KATHERINE                           (D.C. No. CIV-03-521-P)
    SUMMERLIN-PHILLIPS, individually                    (E.D. Okla.)
    and standing in the stead of other
    persons similarly situated;
    AMANDA DREADFULWATER,
    individually and standing in the stead
    of other persons similarly situated;
    LAURA BRODERICK, individually
    and standing in the stead of other
    persons similarly situated;
    CHARLENE JACKSON, individually
    and standing in the stead of other
    persons similarly situated,

          Plaintiffs-Appellants,

    v.

    OKLAHOMA PRODUCTION
    CENTER GROUP HOMES,
    INCORPORATED; EFFIE FOSTER,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
                                                                       (continued...)
Before KELLY, McKAY, and McCONNELL, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiffs appeal from the district court’s grant of summary judgment in

favor of defendants on their claims for unpaid wages, including “sleep time”

compensation, and liquidated damages sought pursuant to the Fair Labor

Standards Act, 29 U.S.C. §§ 201-219 (FLSA) and the Portal-to-Portal Pay Act,

29 U.S.C. §§ 251-262 (PPPA). We take jurisdiction under 28 U.S.C. § 1291 and

affirm.

      We review de novo the district court’s summary-judgment order. Braziel v.

Tobosa Dev. Servs., 166 F.3d 1061, 1062 (10th Cir. 1999). “Where there are no

genuine issues of material fact in dispute, we examine the appropriate legal

standards to determine whether the moving party is entitled to summary judgment

as a matter of law.” Id. Plaintiffs argue that summary judgment was precluded




*
 (...continued)
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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by the existence of disputed material facts. Our review of the record reveals,

however, that the operative facts are undisputed.

      Defendants are a nonprofit corporation and its director who provided

services to developmentally disabled individuals, including residential placement

in group homes. Plaintiffs were employed by defendants to work in the homes as

home managers, working shifts covering several days at a time. While on duty,

plaintiffs were required to sleep in group homes, but they had time off each day

during which they could leave the group homes and spend the time as they

wished. If a plaintiff’s sleep was interrupted by a call to duty, she was paid for

that time, and if her duties prevented her from getting at least five hours’ sleep on

a given night, she was paid for the entire eight-hour sleep period. Each of the

group homes had a furnished private bedroom and bathroom for the home

manager on duty.

      At the time each plaintiff was hired, she understood and agreed that she

would not be paid for up to eight hours per night while working as a group home

manager. Each signed a Wage/Training Agreement in which she agreed that

residential staff would not be compensated for sleep time up to eight hours a

night. Moreover, at the time of hire, each understood that defendants’ policy and

practice was that sleep time was not compensated. Several plaintiffs later




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complained about this policy, but none filed a grievance or other written

complaint with the management.

      “Regulations promulgated pursuant to the FLSA provide that, absent an

express or implied agreement to the contrary, sleep time . . . constitute[s] hours

worked.” Braziel, 166 F.3d at 1063. Under the regulations, if an employee is on

duty for twenty-four hours or more, “the employer and the employee may agree to

exclude . . . a bona fide regularly scheduled sleeping period of not more than 8

hours from hours worked, provided adequate sleeping facilities are furnished by

the employer and the employee can usually enjoy an uninterrupted night’s sleep,”

and interruptions to sleep are paid. 29 C.F.R. § 785.22. Also, an employee who

resides on her employer’s premises permanently or “for extended periods of time”

is not considered to be working all the time she is on the premises, and “any

reasonable agreement of the parties which takes into consideration all of the

pertinent facts will be accepted.” Id. § 785.23.

      Plaintiffs maintain that their work and sleep schedules, as well as their

sleeping accommodations at the group homes, did not meet the requirements of

the regulations permitting the exclusion of sleep time. They also argue that the

written Wage/Training Agreement exempting sleep time is not enforceable.

      Plaintiffs appear to claim further that their work situation was controlled by

an “enforcement policy” promulgated by the Department of Labor. See Hours


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Worked in Residential Care (Group Home) Establishments – Sleep Time and

Related Issues – Enforcement Policy, 1998 WL 614199, Dep’t of Labor, Wage

and Hour Div. (June 30, 1988) (1988 Policy). But they did not present this

argument to the district court, arguing instead that the regulations, 29 C.F.R.

§§ 785.21 through 785.23, should not apply to them. An appellate court generally

“does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S.

106, 120 (1976). Included among the issues not passed upon below is the

“situation where a litigant changes to a new theory on appeal that falls under the

same general category as an argument presented [to the trial court].” Lyons v.

Jefferson Bank & Trust, 994 F.2d 716, 722 (10th Cir. 1993). Even if plaintiffs’

appellate argument could be considered related to their trial theory, “we have

consistently turned down the argument that the raising of a related theory was

sufficient.” Tele-Communications, Inc. v. CIR, 104 F.3d 1229, 1233 (10th Cir.

1997) (quotation omitted). Accordingly, we do not address plaintiffs’ claims

based on the 1988 Policy.

      Turning to the issues properly before us, we conclude that the facts, issues,

and holding in the Braziel case are sufficiently similar to be dispositive of this

appeal. There, as here, “[w]hether analyzed under § 785.22 as to work shifts

greater than twenty-four hours or under § 785.23 as to overnight work shifts less

than twenty-four hours, the key issue in this case is whether an agreement existed


                                          -5-
between [plaintiffs and defendants] to exempt scheduled sleep periods from hours

worked.” Braziel, 166 F.3d at 1063. Although plaintiffs challenge defendants’

reliance on the written Wage/Training Agreement in this respect, we need not

decide whether the Agreement alone is binding because we conclude that there

was an implied agreement to exempt sleep time, and the Agreement is evidence of

the parties’ understanding. See Braziel, 166 F.3d at 1063 (recognizing that the

requisite agreement can be implied). The record demonstrates that the plaintiffs

“understood and acquiesced to the policy when they were hired.” 1 Id. The record

further shows that the agreement was made prior to the start of each plaintiffs’

employment, plaintiffs were provided adequate sleeping facilities, and plaintiffs

were paid for interruptions to their sleep. In addition, if their duties prevented

them from getting at least five hours’ sleep, plaintiffs were paid for the entire

period, as required by the applicable regulations. Therefore, we affirm the district

court’s ruling that the agreement was enforceable.

      Because we affirm the district court’s conclusion that the defendants did

not withhold wages in violation of the FLSA or the PPPA, we need not address

their claim that defendants recklessly disregarded their obligation to pay them for



1
      We recognize that plaintiff Jackson stated that she was left with the
impression that the group home she expected to be assigned to did pay for sleep
time, which was an exception to the general policy. Aplt. App. Vol. III, Tab 27.
Nevertheless, she understood the general policy and acquiesced to it.

                                         -6-
sleep time or their argument that defendants were not entitled to a good-faith

defense.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court


                                                    Monroe G. McKay
                                                    Circuit Judge




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