                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 9 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CINDY K. BEASLEY; CHERYL A.
    KRAFT; JOLYNN OFFICER; DEBBY
    L. WAIR; AUD LANGSHOLT;
    ESTHER CUELLAR; JOANN
    MILLER; MICHAELYN S.
    WALKER,

                Plaintiffs-Appellants,

    v.                                             Nos. 02-5121& 02-5147
                                                  (D.C. No. 00-CV-1028-EA)
    HILLCREST MEDICAL CENTER,                            (N.D. Okla.)
    a corporation,

                Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Judge, HARTZ, and O’BRIEN, Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
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.
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

      In case No. 02-5121, plaintiffs appeal the district court’s grant of summary

judgment in favor of defendant Hillcrest Medical Center (Hillcrest) on their

claims for overtime compensation under the Fair Labor Standards Act (FLSA),

29 U.S.C. §§ 201-219. In case No. 02-5147, plaintiffs appeal the district court’s

imposition of discovery sanctions. Because plaintiffs’ summary judgment

evidence raised a triable issue whether they were primarily engaged in work-

related activities during their lunch periods, we reverse the judgment on their

claims and remand for further proceedings. Because plaintiffs failed to make any

argument regarding the propriety of the discovery sanctions, we affirm the district

court’s imposition of sanctions.

      Plaintiffs are, or were, employed by Hillcrest as nurses or technicians.

Generally, plaintiffs were paid for the shifts they worked minus one half hour for

lunch. Hillcrest had a procedure available to pay employees for any overtime

worked, requiring the employees to complete a “Time Exception Report” and

obtain their supervisors’ signature. See Aplt. App. at 113-14. It is undisputed

that Hillcrest paid all requests for overtime, including over a hundred missed

lunches for one of the plaintiffs. Plaintiffs allege that they did not request

payment for interrupted lunches because they thought they were only entitled to


                                          -2-
overtime if they completely missed the meal. No evidence was presented as to the

source of this understanding.

       At a union meeting, plaintiffs were informed that they were entitled to

overtime compensation for meals which were interrupted for a work purpose.

Plaintiffs brought this action seeking overtime compensation for their interrupted

meals over a three-year period. On July 5, 2002, the district court granted

summary judgment in favor of Hillcrest and against plaintiffs, ruling that

plaintiffs failed to raise a triable issue whether their meal periods were spent

predominantly for Hillcrest’s benefit. On August 26, 2002, the district court

entered judgment against plaintiffs assessing discovery sanctions. On appeal,

plaintiffs argue only that they presented sufficient evidence to survive summary

judgment.

       We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.   Revell v. Hoffman ,

309 F.3d 1228, 1231 (10th Cir. 2002),     cert. denied , 71 U.S.L.W. 3751 (U.S.

Oct. 6, 2003). A district court properly grants summary judgment if “there is no

genuine issue as to any material fact and . . . the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). “To determine whether a

dispute is genuine, we must consider whether a reasonable jury could return a




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verdict for the nonmoving party.”   Revell , 309 F.3d at 1232 (further quotation

omitted).

      To make a case for overtime compensation, plaintiffs must show that they

performed more than forty hours of work in a week but were not paid for the

excess time. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)

(holding that an FLSA plaintiff has the burden of proving “that he has in fact

performed work for which he was improperly compensated and . . . [must]

produce[] sufficient evidence to show the amount and extent of that work as

a matter of just and reasonable inference”).

      Federal regulations discuss when a meal period should be counted as work

time, defining a bona fide meal period as a “rest period” during which an

employee “must be completely relieved from duty for the purposes of eating

regular meals.” 29 C.F.R. § 785.19. Plaintiffs argue that they were not

completely relieved from duty because their lunch periods were often interrupted

by work-related tasks. The question is not whether their meals were interrupted,

however, but whether the degree of interruption caused them to spend their meal

periods primarily for Hillcrest’s benefit. See Lamon v. City of Shawnee, 972 F.2d

1145, 1157-58 (10th Cir. 1992) (holding appropriate standard for evaluating

whether meal periods are compensable is whether the employee’s time is spent

predominately for the benefit of the employer).


                                         -4-
      In Lamon, we held that police officers raised a triable issue regarding the

compensability of their meals because of the number and range of restrictions

placed on them by their employer. Id. at 1156. The officers presented evidence

that they were required to take their meals within the city limits or obtain

permission to dine close to the city; to leave a phone number or monitor a mobile

radio; to respond to emergency calls or personnel shortages; to respond to citizen

inquiries or requests; to confront crimes committed in their presence; and to act in

a responsible and professional manner. In addition, the officers were not

permitted to do personal errands during the meal period. We emphasized that

simply because an officer “is on call and has some limited responsibilities during

meal periods does not perforce mean the officer is working.” Id. at 1157.

      Plaintiffs argue that the decision in Lamon does not apply to them because

the court in that case was interpreting 29 C.F.R. § 553.223(b), which is

specifically aimed at law enforcement personnel, and not 29 C.F.R. § 785.19,

which applies more generally. Although this may be true, § 553.223(b)

incorporates the standards from § 785.19, and we noted in Lamon that

“our contrasting of the two sections, § 553.223(b) and § 785.19, does not mean

that the ‘completely relieved from duty’ standard as used in the latter section

should necessarily take on a different meaning than that of the former section.”




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Id. at 1158 n.18. Plaintiffs have not advanced a persuasive rationale for

distinguishing between the two sections.

      The inquiry whether an employee’s time is spent “predominately for the

benefit of the employer” is “highly individualized and fact-based.” Pabst v. Okla.

Gas & Elec. Co., 228 F.3d 1128, 1132 (10th Cir. 2000). Thus, we must consider

each plaintiff’s evidence individually to determine whether it raised a factual

dispute regarding the nature of the plaintiff’s activities during her meal period.

      Plaintiff Langsholt testified that when working as a labor and delivery

nurse, she was required to watch the monitors in the break room during her meal

periods; she was unable to relax because she had to remain alert at all times and

had to respond immediately if one of the monitors showed a problem; that her

meal periods were often interrupted by doctors requesting that she check on

patients; and that she engaged in these monitoring and response duties during

approximately ninety-five percent of her meal periods. Aplt. App. at 274-75.

      Plaintiff Beasley testified that she would take her meal once her patients

were taken care of; that there were times that she would eat a sandwich while

working on the computer; that on weekends and nights when there were only two

nurses they would eat at the desk while watching patient monitors and answering

the phone; and that her meal breaks were interrupted “[m]ost all the time,” as




                                         -6-
many as three or four times per meal, for things like phone calls, conversations

with doctors, and administering pain medication. Id. at 300-01.

      Plaintiff Miller testified that she was a secretary, monitor tech, and a nurse

aide in the intensive care unit. She testified that she never had an uninterrupted

meal, and that she would be interrupted “at least 75 percent of the time” by phone

calls, patients using their call buttons, new admissions into the unit, or watching

monitors. Id. at 264. She testified that she would eat her meal while watching

monitors or doing work, and that she never had time to do personal activities

during her meal period. Id. at 265.

      Plaintiff Kraft testified that she was usually the only IV nurse on her shift,

that she carried a pager, and that if her pager went off during her meal she had

to respond. Id. at 284. She testified that she could not specify how many times

or for what reasons her meal breaks were interrupted, but that it happened on

a daily basis. Kraft testified that her pager went off approximately every ten to

fifteen minutes because she was often the resource person for other nurses. Id.

at 284-85. She testified that when she took a call during her meal, it often took

fifteen or twenty minutes to discuss the issue. Id. at 289.

      Plaintiff Walker also was an IV nurse. She testified that she wore a pager

which was “usually always going off because [she] was also backup for . . .




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everybody.” Id. at 206. She also had to respond to code blues.             Id. Walker

testified that she did not think she ever had an uninterrupted meal.           Id.

       Plaintiff Cueller testified that she was often interrupted during her meal

period. Id. at 218. She testified that when she worked in the cardiac unit, she

was subject to call during her meals for a variety of reasons, including answering

questions from a patient’s family members or doctors, getting an IV, or

responding to a code.     Id. She testified that most of her interruptions were more

than five minutes.    Id. at 222. She also testified that she could not leave the

hospital during lunch because there was not enough time to do so.              Id. at 221.

       Plaintiff Officer testified that she rarely got an uninterrupted lunch, and

that her meals were interrupted “on a daily basis, not just once but several times

during . . . lunch.” Aplt. App. at 234-35. She estimated that ninety-five percent

of her lunches were interrupted.      Id. at 234. She gave examples of interruptions

that happened “on a regular basis” including doctors’ phone calls, calls from

patients’ families, patients in distress, or the arrival of a critical medication.           Id.

at 231-32. She testified it was her impression she was not allowed to leave the

building, and that “lots of times” it took her three hours to eat her lunch.          Id. at

232, 234.    Id. at 231, 234.

       Plaintiff Wair testified that she was seeking compensation for all meals

when she was the charge nurse because she was not allowed to leave the floor.


                                               -8-
Id. at 243. She testified that she also sought compensation for days that she

worked as a staff nurse because there had to be a certain amount of licensed

nurses on the floor, and for visiting days because her meal would be interrupted

to unlock the door for visitors and to interact with their families. Id. at 243-44.

Wair testified that her meals were also interrupted by phone calls and questions

from other staff. Id. at 246. She testified that her meals were interrupted two to

three times a week. Id. at 245.

      In Lamon , we held that the officers raised a triable issue by showing that

they were limited as to the location of their meals and were subject to call for a

variety of reasons. See 972 F.2d at 1155-57.    Here, plaintiffs presented similar

evidence that they were restricted as to where they could take their meals, and

that their meals were frequently interrupted for a variety of reasons. Moreover,

evidence that plaintiffs spent their meal periods watching monitors or working on

a computer could support a finding that they spent those meals predominately for

the benefit of Hillcrest. See 29 C.F.R. § 785.19 (explaining that an employee is

not relieved from duty if required to eat at his or her work station). We conclude

plaintiffs raised a triable issue whether their “time or attention [was] taken up

principally by official responsibilities that prevent[ed them] from comfortably and

adequately passing the mealtime.” Lamon, 972 F.2d at 1157-58.




                                          -9-
      Hillcrest argues that because it has an overtime reporting system in place,

and plaintiffs’ managers testified in affidavits that they were not aware that

plaintiffs were working uncompensated overtime, it cannot be held liable under

the FLSA. We rejected a similar argument in Pabst, noting that even if the

employer did not know that the employees’ time met the legal definition of work,

it “certainly knew that plaintiffs were performing the duties they had been

assigned.” 228 F.3d at 1133.

      Hillcrest also argues that the plaintiffs did not meet their burden of

showing how many hours they worked in excess of the statutory work week. It is

not clear why plaintiffs did not know which or how many shifts they worked

during the period in question, given Hillcrest’s record-keeping requirements.

However, because the district court specifically declined to rule on the sufficiency

of plaintiffs’ evidence in this regard, we will not make this assessment on appeal.

We therefore remand plaintiffs’ claims for further proceedings on the issue.

      Although plaintiffs purported to appeal the district court’s imposition of

discovery sanctions, they did not raise any argument on this issue in their briefs.

We therefore affirm the district court’s grant of discovery sanctions. See Reazin

v. Blue Cross & Blue Shield of Kan., Inc., 899 F.2d 951, 979 n.43 (10th Cir.

1990) (holding party abandoned issue that was raised in docketing statement but

not argued in brief).


                                         -10-
      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED in part and REVERSED in part, and plaintiffs’ FLSA

claims are REMANDED for further proceedings consistent with this decision.


                                                   Entered for the Court



                                                   Deanell Reece Tacha
                                                   Chief Judge




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