                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 17 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    JERRY D. ORMSBY,

                Plaintiff-Appellant,
                                                         No. 02-3139
    v.                                            (D.C. No. 01-CV-4029-DES)
                                                          (D. Kansas)
    C.O.F. TRAINING SERVICES, INC.,                  194 F. Supp. 2d 1177

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , BALDOCK , and LUCERO , 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 appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
       Plaintiff Jerry D. Ormsby appeals from the district court’s grant of

summary judgment to defendant, his former employer,          on claims for allegedly

unpaid overtime hours, pursuant to the Fair Labor Standards Act (FLSA) and the

Portal-to-Portal Pay Act. Before we discuss the merits of plaintiff’s claims,

however, we must address       defendant ’s claim to Eleventh Amendment immunity.

       Before the district court, defendant asserted immunity as an arm of the

state. The district court denied    defendant immunity after analyzing     defendant’s

arguments in light of the inquiry set out in     Sturdevant v. Paulsen , 218 F.3d 1160

(10th Cir. 2000). Although       defendant ultimately prevailed on the merits of

plaintiff’s claims, on appeal it reurges the Eleventh Amendment immunity claim.

We review these arguments de novo,        see id . at 1164, and conclude that the district

court correctly rejected them. The district court expressed its primary reliance on

the first factor of the   Sturdevant inquiry, i.e. , whether the state would be liable

for a money judgment against       defendant . See Duke v. Grady Mun. Schs. ,

127 F.3d 972, 980 (10th Cir. 1997) (stating that legal liability for a judgment is

the most important factor). Defendant admits that the state would not be liable

directly, but argues that, because a vast majority of its funding comes from the

state, a money judgment against      defendant could potentially impact the state

treasury. The focus of this inquiry, however, is the legal liability for a judgment,




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not an indirect impact on the state treasury.          See id. at 981. Therefore this factor

weighs against immunity.

       The district court also considered the second factor–autonomy and financial

independence–using the four-part test as set out in          Sturdevant, 218 F.3d at 1166.

After considering defendant ’s arguments on appeal, we agree with the district

court that only one of the four parts supports          defendant ’s claim to immunity–its

state funding. Therefore, this factor does not weigh in           defendant ’s favor. We

conclude the district court properly denied           defendant ’s claim to Eleventh

Amendment immunity.

       Proceeding to the merits, we also examine the district court’s grant of

summary judgment to defendant de novo. See Tool Box v. Ogden City Corp .,

316 F.3d 1167, 1173 (10th Cir. 2003). The district court granted            summary

judgment to defendant based on its conclusion that plaintiff had agreed to a

working schedule which included unpaid “sleep time” hours–hours he had to

remain on the premises but was not required to perform routine duties.             See

Braziel v. Tobosa Dev. Servs ., 166 F.3d 1061, 1063 (10th Cir. 1999) (applying

New Mexico law to conclude that sleep time constitutes hours worked, absent an

express or implied agreement to the contrary). Plaintiff argues that           defendant ’s

employee handbook precluded the formation of implied contracts, a proposition

that the district court correctly rejected as a matter of law. We agree with the


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district court that plaintiff has come forward with no legal authority to support

this proposition or its argument on appeal that Kansas law “requires a factual

inquiry more searching than that of New Mexico.” Aplt. Br. at 8. Plaintiff also

argues that there was a triable issue as to      whether defendant intended to bar all

implied contracts. We disagree. Despite plaintiff’s assertion that it was

undisputed that “[d]efendant imposed a complete ban on implied agreements with

its employees through a comprehensive employee handbook,” Aplt. Br. at 4-5,

nothing in the language of the handbook on which plaintiff relied in its

arguments before the district court supports a reasonable inference that defendant

intended to bar all implied contracts.        Because there was no triable issue of fact

underlying the district court’s conclusion that plaintiff had impliedly agreed to the

work schedule, including the unpaid sleep time hours, the district court did not err

in declining to submit the question to a jury.        Cf. Dupree v. United Parcel Serv.,

Inc. , 956 F.2d 219, 222 (10th Cir. 1992) (submission to a jury not required when

evidence did not support existence of an implied contract) (quoting         Anderson v.

Liberty Lobby, Inc. , 477 U.S. 242, 251-52 (1986)).

       We need not address the balance of plaintiff’s arguments because they

challenge an alternate argument made by          defendant in the event the district court




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had concluded that defendant violated the FLSA. The judgment of the United

States District Court for the District of Kansas is AFFIRMED.


                                                  Entered for the Court



                                                  Bobby R. Baldock
                                                  Circuit Judge




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