                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


KENNETH L. MYERS; LINDA S.               
MYERS, on behalf of themselves and
all other employees of Baltimore
County, Maryland similarly situated;
THOMAS T. FREELAND; FRANK JAMES
SNYDER; PATRICIA ANN THOMPSON;
ROBERT M. MILLER; JUNE L. MILLER;
PAULETTE D. WINIARSKI; STANLEY F.
WINIARSKI; BERNICE C. CLARK; JAMES
D. CLARK, JR.; LORETTA G. HOWARD,
Personal Representative of the
Estate of George W. Howard;
VERNON CLIFTON POE; JOANN
VIRGINIA POE; RICHARD J.                         No. 01-2356
DANNENFELSER, JR.; SUSANNE K.
DANNENFELSER; CARTER LEE RAY;
ANNIE VIRGINIA RAY; JOSEPH R.
ANTHONY; PAMELA K. ANTHONY;
FLOYD BEECHER BRINSON, Personal
Representative of the Estate of
Norma Brinson; HAZEL L. FREELAND,
                Plaintiffs-Appellants,
                  v.
BALTIMORE COUNTY, MARYLAND,
              Defendant-Appellee.
                                         
            Appeal from the United States District Court
             for the District of Maryland, at Baltimore.
                  Marvin J. Garbis, District Judge.
                         (CA-99-2561-MJG)

                        Argued: June 5, 2002
                       Decided: October 7, 2002
2                    MYERS v. BALTIMORE COUNTY
        Before WILLIAMS and GREGORY, Circuit Judges, and
         Frederick P. STAMP, Jr., United States District Judge
               for the Northern District of West Virginia,
                         sitting by designation.



Affirmed by unpublished opinion. Judge Williams wrote the majority
opinion, in which Judge Stamp joined. Judge Gregory wrote a dissent-
ing opinion.


                             COUNSEL

ARGUED: Francis Donald DeMuro, LAW OFFICES OF JOSEPH S.
LYONS, Towson, Maryland, for Appellants. Paul M. Mayhew,
COUNTY ATTORNEY’S OFFICE, Towson, Maryland, for Appel-
lee. ON BRIEF: George E. Reuling, LAW OFFICE OF GEORGE E.
REULING, Towson, Maryland; James C. Strouse, LAW OFFICE OF
JAMES C. STROUSE, Columbia, Maryland, for Appellants. Edward
J. Gilliss, County Attorney, Jeffrey Grant Cook, Assistant County
Attorney, Towson, Maryland, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

WILLIAMS, Circuit Judge:

   This appeal arises out of a claim for unpaid minimum wages and
overtime compensation brought by twenty-four individuals who
served as caretakers in Baltimore County, Maryland parks (Caretak-
ers). The Caretakers allege that Baltimore County, their employer,1
    1
  The issue of whether the Caretakers are "employees" of Baltimore
County for the purposes of the FLSA has not been resolved. The agree-
                      MYERS v. BALTIMORE COUNTY                          3
violated the Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201-
209 (1998), and the Maryland Wage and Hour Law (MWHL), Md.
Code Ann., Labor and Employment, §§ 3-401 et seq. (1999), by fail-
ing to compensate them adequately for their work. The district court,
concluding that the parties had reached a "reasonable agreement" as
provided under 29 C.F.R. § 785.23 (2001), entered an order granting
summary judgment to Baltimore Parks. We affirm the judgment of
the district court.

                                    I.

   Prior to August 30, 1999, when the program was discontinued, Bal-
timore County operated a caretaker program that offered free accom-
modation to two adult individuals, usually a married couple, who
agreed to serve as Caretakers in a public park. All twelve Caretaker
couples bringing the present action signed a "Baltimore County
Department of Recreation and Parks Caretakers Agreement" (the
Caretakers’ Agreement) in their joint capacity. Under the Caretakers’
Agreement, each Caretaker couple was provided with rent-free
accommodation and water at a home located in or near the park to
which the couple was assigned. In exchange, one of the Caretakers in
each couple was required to (1) be continuously present in the park;
(2) clean the comfort station and other park areas, as necessary; (3)
tour the park in the morning and open the park gate to allow public
access; (4) tour the park in the evening and close the park gate; and
(5) maintain a Daily Caretaker’s Log of any park maintenance
required due to damage or vandalism. Discovery revealed that at least
one member of each Caretaker couple, with one possible exception,
maintained full- or part-time employment outside of the park. In some
cases, both worked outside the park. Caretakers were permitted to
have extended absences from the park, but seven days advance writ-

ment they signed specifically states that "[t]he caretaker is classified as
a Tenant/Independent Contractor with Baltimore County and is in no
way considered to be an employee of Baltimore County." (J.A. at 594.)
Moreover, there is no evidence that the Caretakers reported the rental
value of their accommodations as income. For the purposes of this
appeal, however, we will assume, without deciding, that the Caretakers
are employees of Baltimore County.
4                   MYERS v. BALTIMORE COUNTY
ten notice was required, and the Caretakers were responsible for find-
ing suitable substitutes.

   On March 5, 1999, Baltimore County announced its decision to ter-
minate the Caretaker program after August 30, 1999, replacing the
Caretakers with part-time employee park attendants. On August 19,
1999, twenty-four individuals who had been serving as Caretakers for
durations from three years to over twenty years filed a complaint in
the United States District Court for the District of Maryland. The
Caretakers alleged that Baltimore County failed to pay the minimum
wage required under 29 U.S.C.A. § 206(a)(1) (setting minimum wage
at $4.75 an hour beginning on October 1, 1996, and $5.15 an hour
beginning on September 1, 1997), and overtime as required under 29
U.S.C.A. § 207(a)(1) (requiring compensation at least one and one-
half times the regular rate for hours over forty a week). The Caretak-
ers also claimed that Baltimore County violated the MWHL by failing
to pay the federal minimum wage, Md. Code Ann., Labor and
Employment, § 3-413(1) (providing that employers pay "to each
employee who is subject to both the federal Act and this subtitle, at
least the minimum wage for that employee under the federal Act"),
and by failing to pay overtime, Md. Code Ann., Labor and Employ-
ment, § 3-415(a) (requiring "each employer [to] pay an overtime
wage of at least 1.5 times the usual hourly wage").

   After discovery, the Caretakers and Baltimore County filed cross-
motions for summary judgment. The district court applied 29 C.F.R.
§ 785.23, a regulation interpreting the FLSA, because the Caretakers
were residing on Baltimore County’s premises. Section 785.23 pro-
vides as follows:

    An employee who resides on his employer’s premises on a
    permanent basis or for extended periods of time is not con-
    sidered as working all the time he is on the premises. Ordi-
    narily, he may engage in normal private pursuits and thus
    have enough time for eating, sleeping, entertaining, and
    other periods of complete freedom from all duties when he
    may leave the premises for purposes of his own. It is, of
    course, difficult to determine the exact hours worked under
    these circumstances and any reasonable agreement of the
    parties which takes into consideration all of the pertinent
                      MYERS v. BALTIMORE COUNTY                            5
      facts will be accepted. This rule would apply, for example,
      to the pumper of a stripper well who resides on the premises
      of his employer and also to a telephone operator who has the
      switchboard in her own home.

29 C.F.R. § 785.23. The district court concluded that the Caretakers’
Agreement was a reasonable agreement that took into consideration
all of the pertinent facts and thus granted summary judgment in favor
of Baltimore County.2 The Caretakers filed a timely notice of appeal,
claiming that the district court erred in finding that the Caretakers’
Agreement constituted a "reasonable agreement" under 29 C.F.R.
§ 785.23.3

  We review a grant of summary judgment de novo, viewing all facts
and inferences in the light most favorable to the nonmoving party.
Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001).
Summary judgment is appropriate 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).

                                     II.

   The Caretakers seek compensation for every hour that they were
required to be present in the park. As discussed below, we conclude
that the Caretakers’ twenty-four hour presence was not compensable
"work" as a matter of law. Moreover, any claim that the Caretakers’
Agreement violates the FLSA for failure to compensate the Caretak-
ers adequately for the "work" they did perform would also fail as a
  2
     The Caretakers argue that the district court erred by applying 29
C.F.R. § 785.23 because the regulation was outside the scope of an ear-
lier order providing that "discovery and trial shall proceed with respect
to issues related to . . . the hours per week (or month) for which the
Plaintiffs are to be considered as working." (J.A. at 69.) Because
§ 785.23 addresses when an employee residing on an employer’s prem-
ises is working, it is not outside the scope of the district court’s order.
   3
     The Caretakers also argue that the district court erred by denying their
motion for summary judgment. Denials of summary judgment, however,
are not final orders and, thus, are not generally appealable. See Hensley
v. Horne, 297 F.3d 344, 347 (4th Cir. 2002).
6                    MYERS v. BALTIMORE COUNTY
matter of law. Accordingly, we agree with the district court that the
Caretakers failed to establish a genuine issue of material fact regard-
ing whether their agreement is reasonable. Consequently, Baltimore
County is entitled to judgment as a matter of law.

                                  A.

   As described above, the Caretakers were required to provide
twenty-four hour park presence for security purposes. Baltimore
County wanted a constant presence in the park to deter vandalism and
to have someone on hand to summon the police, fire department, or
an ambulance if an irregular situation arose. In essence, their twenty-
four hour duty was to live in the park "waiting" for an emergency sit-
uation to develop. The Caretakers assert that because their only com-
pensation for being on duty twenty-four hours a day was housing and
water use, the Caretakers’ Agreement violated the minimum wage
and overtime provisions of the FLSA on its face. In Skidmore v. Swift
& Co., 323 U.S. 134 (1944), the Supreme Court addressed the issue
of whether "waiting time" was considered working time under the
FLSA. Explaining that there is no legal formula to resolve the issue,
the Court stated the following:

    Whether in a concrete case such time falls within or without
    the [FLSA] is a question of fact to be resolved by appropri-
    ate findings of the trial court. This involves scrutiny and
    construction of the agreements between the particular par-
    ties, appraisal of their practical construction of the working
    agreement by conduct, consideration of the nature of the ser-
    vice, and its relation to waiting time, and all of the surround-
    ing circumstances. Facts may show that the employee was
    engaged to wait, or they may show that he waited to be
    engaged.

323 U.S. at 136-37 (citation omitted). "The critical question, the
Court has suggested, is ‘whether time is spent predominantly for the
employer’s benefit or for the employee’s.’" Roy v. County of Lexing-
ton, 141 F.3d 533, 544 (4th Cir. 1998) (quoting Armour & Co. v.
Wantock, 323 U.S. 126, 133 (1944)). The Caretakers argue that under
the Skidmore test, summary judgment is inappropriate because
whether they were "engaged to wait" or "waiting to be engaged" is
                     MYERS v. BALTIMORE COUNTY                          7
itself a material issue of factual dispute. This court, however, previ-
ously has rejected such a reading of Skidmore by determining that an
employee was "waiting to be engaged" as a matter of law. See Kelly
v. Hines-Rinaldi Funeral Home, Inc., 847 F.2d 147, 148 (4th Cir.
1989) (applying the Skidmore test and concluding, as a matter of law,
that time the employees spent "living" in an apartment at a funeral
home was time "waiting to be engaged" despite their having to answer
the phone at any hour during the night and pick up corpses if neces-
sary). Moreover, 29 C.F.R. § 785.23 provides a presumption that
when an employee resides on his employer’s premises, he is not
working the entire time he is on the premises. See Jarrett v. ERC
Properties, Inc., 211 F.3d 1078, 1082 (8th Cir. 2000) (noting that no
evidence was presented to overcome the presumption). In this case,
the Caretakers have failed to produce specific facts to overcome the
presumption and support their assertion that they were "working"
within the meaning of the FLSA the entire time they were present in
the park. The unrefuted evidence demonstrates that an overwhelming
amount of the time that the Caretakers were required to be present in
the park was available for uninterrupted personal pursuits and use of
the house. For example, the Caretakers were free to watch television,
eat, and sleep. There is no indication that interruptions of private pur-
suits were frequent enough to render such time work time, that is,
time spent predominantly for the benefit of Baltimore County.4 The
time the Caretakers spent merely waiting for an occurrence requiring
their attention, therefore, was time during which they were waiting to
be engaged.5 See Kelly, 847 F.2d at 148 ("While there was no clear
  4
    As noted above, the Caretakers were also free to, and did, pursue
employment outside of the park. See supra at 3.
  5
    The conclusion that the Caretakers were "waiting to be engaged" as
a matter of law is not, as the dissent suggests, contrary to Skidmore’s
"fact-based approach." Post at 17. Instead, as in Kelly, the determination
that the Caretakers, while merely living in the park, were "waiting to be
engaged" was based on the facts of the case. Specifically, the evidence
presented by the Caretakers demonstrates that other than a set list of
duties, which were compensable and are discussed in part II.B, infra, the
Caretakers’ time, both at night and during the day, was their own for per-
sonal pursuits, and interruptions of their personal time were infrequent.
The Caretakers have failed, in other words, to present evidence to sup-
port their claim that the time spent living in the park was time in which
8                     MYERS v. BALTIMORE COUNTY
agreement between the parties on the exact nature of the time in ques-
tion, practical considerations guide us to conclude that [the employee]
waited to be engaged."); see also Service Employees International
Union, Local 102 v. County of San Diego, 60 F.3d 1346, 1355 (9th
Cir. 1995) (concluding that requirement of Park Ranger to be on-call
to respond to inquiries and enforce park rules was not so restrictive
that on-call time could not be used for personal activities). Because
the Caretakers have failed to set forth any specific facts in response
to Baltimore County’s properly-supported motion for summary judg-
ment, we affirm the district court’s conclusion that they were "waiting
to be engaged" as a matter of law.

                                    B.

   While the Caretakers were not working every hour they were in the
park, clearly some of the work they performed while living in the
park was compensable under the FLSA. Specifically, the Caretakers
were required to clean the comfort station and other park areas, as
necessary; tour the park twice a day; open and close the park; main-
tain a Daily Caretaker’s Log of any park maintenance required due to
damage or vandalism; and summon authorities when emergency situ-
ations arose (the FLSA work).6 As 29 C.F.R. § 785.23 recognizes,

they were engaged to wait, that is, time spent predominantly for Balti-
more County’s benefit. Our holding, therefore, does not alter Skidmore’s
fact-based inquiry, but rather, as in Kelly, applies the fundamental princi-
ple that a trial on a factual issue, such as whether time spent living on
an employer’s premises is primarily for the employee’s benefit or the
employer’s, is only necessary when it "may reasonably be resolved in
favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986).
  6
    The district court did not consider whether any of these duties fall
under the FLSA’s de minimis doctrine. See, e.g., Brock v. City of Cincin-
nati, 236 F.3d 793, 804 (6th Cir. 2001) (explaining that courts "treat the-
oretically compensable work as noncompensable under the FLSA when
the amount of such work is negligible"). Most courts, including the
Fourth Circuit, treat daily periods of approximately 10 minutes as de
minimis. See, e.g., E. I. du Pont de Nemours & Co. v. Harrup, 227 F.2d
133, 135-36 (4th Cir. 1955); Lindow v. United States, 738 F.2d 1057,
1062 (9th Cir. 1984). There is no direct evidence that any of the Caretak-
ers’ tasks took less than 10 minutes to complete. Therefore, in viewing
the record in a light most favorable to the Caretakers, we will assume
that none of the Caretakers’ tasks were de minimis.
                     MYERS v. BALTIMORE COUNTY                          9
however, it would be difficult to determine the exact hours the Care-
takers worked. Unsupervised employees living on their employer’s
premises may divide their time between "work" and personal pursuits,
and the work performed is often sporadic in nature. As the district
court pointed out, "[the FLSA work] varied from day-to-day based on
a host of factors, some as simple as the season of the year (e.g., com-
fort stations were closed during the late fall and winter, and conse-
quently, Caretakers were not required to clean them)." (J.A. at 994.)
Moreover, it would have been administratively burdensome to record
the time it took to complete every duty. In such circumstances, "any
reasonable agreement of the parties which takes into consideration all
of the pertinent facts will be accepted." 29 C.F.R. § 785.23. An agree-
ment is acceptable under 29 C.F.R. § 785.23 if it "falls within a broad
zone of reasonableness, considering its terms and all of the facts and
circumstances of the parties’ relationship." Brock v. City of
Cincinnati, 236 F.3d 793, 806 (6th Cir. 2001).

   We agree with the district court that there are no genuine issues of
material fact regarding whether the Caretakers’ Agreement was rea-
sonable under 29 C.F.R. § 785.23.7 In exchange for the FLSA work,
the Caretakers received rent-free accommodation in or near a county
park and free water, which is a substantial benefit. See infra at 11
(calculating approximate rental value of Caretakers’ houses). Further-
  7
   The Caretakers argue that the district court incorrectly applied a sub-
jective, rather than an objective, standard to determine the reasonable-
ness of the Caretakers’ Agreement. Although we agree that 29 C.F.R.
§ 785.23 requires an agreement to be objectively reasonable, a review of
the record makes clear that the district court applied the correct legal
standard. Specifically, after concluding that the Caretakers had an over-
whelming amount of time for personal pursuits, the district court deter-
mined that the agreement was objectively reasonable because a
consistent work schedule for the work that was performed would have
been difficult to develop and the Caretakers were compensated well
above the minimum wage for their work. (J.A. at 996-97.) The district
court relied on the Caretakers’ subjective opinion only to show that the
Caretakers, prior to the termination of the program, agreed with the con-
clusion ultimately reached by the court that the agreement was objec-
tively reasonable: "They realized full well that they were reasonably
compensated and that the Agreement was more than fair to them." (J.A.
at 997.)
10                    MYERS v. BALTIMORE COUNTY
more, there were clearly other benefits to living in the park that would
be difficult to quantify. Living in the park was a unique opportunity
for the Caretakers — an environment that most people go out of their
way to visit was immediately available to them.8 See Brock, 236 F.3d
at 807 (explaining that non-monetary support the city provided rea-
sonably compensated the plaintiffs for any deficiency in their com-
pensation).

   Although the Caretakers’ Agreement appears reasonable on its
face, the Caretakers argue that the district court erred by failing to
make a specific finding with regard to the actual number of hours that
the Caretakers worked. See id. ("The actual amount of time spent in
FLSA ‘work,’ if reliably ascertained, is a reference point for a range
of reasonable agreements, a range that is widened by a variety of non-
monetary costs and benefits."). Because the purpose of 29 C.F.R.
§ 785.23 is to address situations in which it is difficult, if not impossi-
ble, to determine the exact time worked, a finding of the exact hours
worked may not be required to determine whether the agreement was
reasonable. Moreover, accepting the Caretakers’ highest estimate of
the time they spent on FLSA work, the rental value of the Caretakers’
residences compensated them at a rate above the minimum wage. The
average rental value for the Caretakers’ residences, according to the
Caretaker’s Manual, was $700 per month.9 Thus, the Caretaker couple
  8
     In deposition testimony, one Caretaker explained his fondness of liv-
ing in the park as follows: "I got attached to the park. I mean, I really
got attached to it, and I really don’t want to live anywhere else. I like it
down there. It’s like living in the city and the . . . country at the same
time." (J.A. at 402-03.)
   9
     Baltimore County made this estimate in a report demonstrating the
value of the services rendered by the Caretakers. The report concluded
that "by utilizing a caretaker, in lieu of an ‘around-the-clock’ park atten-
dant, Baltimore County is able to realize a cost savings of [$30,582 a
year]." (J.A. at 630.) The Caretakers argue that this report demonstrates
that Baltimore County willfully circumvented the requirements of the
FLSA to enjoy this savings. The possibility that an employee could have
received a more favorable agreement, however, does not make the Care-
taker Agreement unreasonable. Brock, 236 F.3d at 806 ("[A] court must
ascertain whether this agreement falls within a broad zone of reasonable-
ness."). Moreover, it is unlikely that a park attendant would enjoy the
same freedom to pursue personal pursuits as did the Caretakers.
                     MYERS v. BALTIMORE COUNTY                         11
received approximately $23 a day in exchange for the FLSA work.
How they chose to divide the FLSA work, and thus the compensation,
is irrelevant to whether the agreement reasonably compensates for the
specified tasks. The federal minimum wage has been $5.15 an hour
since September 1, 1997.10 29 U.S.C.A. § 206(a)(1). Dividing the
weekly pay by the minimum hourly wage, we conclude that at the
minimum wage each Caretaker couple was compensated for no more
than 4.5 hours of work per day, approximately 32 hours per week.11
The Caretakers have presented no evidence demonstrating that com-
pensation for 4.5 hours per day under-approximated the actual amount
of FLSA work they performed. One of the Caretakers specifically tes-
tified at a deposition that it took between 3 and 4 hours a day to com-
plete the tasks.12 Because the Caretakers have presented no evidence
in response to the summary judgment motion that indicates that the
FLSA work engaged each Caretaker couple for more than 32 hours
a week, we agree with the district court’s conclusion that the rent-free
accommodation compensated them well above the minimum wage for
the work they performed.13 Furthermore, because Baltimore County
  10
      Prior to September 1, 1997, the minimum wage was $4.75 per hour.
29 U.S.C.A. § 206(a)(1). For simplicity’s sake, we assume that the
higher rate of $5.15 per hour applies to the Caretakers’ entire claim even
though the lower pre-September 1, 1997 rate may apply to a portion of
the Caretakers’ claim. The Caretakers filed their claim on August 19,
1999, and there is a two-year statute of limitations for FLSA actions "to
enforce any cause of action for unpaid minimum wages, unpaid overtime
compensation, or liquidated damages," except that "a cause of action
arising out of a willful violation may be commenced within three years
after the cause of action accrued." 29 U.S.C.A. § 255(a). Of course,
assuming that the higher rate applies to the whole claim benefits the
Caretakers.
   11
      Our calculations are as follows: $700 a month ÷ 30 days a month ÷
$5.15 per hour x 7 days a week = 31.7 hours a week.
   12
      The only evidence that a Caretaker worked longer than 4.5 hours in
one day is deposition testimony from one Caretaker that occasionally he
would spend a 7 or 8 hour day in the park. Even with one 8 hour day,
however, the Caretaker would have to work over 4 hours each of the
other days to exceed the 32 hours a week for which he was compensated.
There was no indication that any Caretaker regularly worked over 4
hours a day.
   13
      The dissent argues that Baltimore County, as the moving party, has
failed to meet its burden because it has presented no evidence that the
12                    MYERS v. BALTIMORE COUNTY
paid the Caretakers no less than the minimum wage under the FLSA,
the agreement also does not violate the minimum wage or overtime
compensation provisions of the MWHL. Md. Code Ann., Labor and
Employment, § 3-413 (requiring employers to pay at least the mini-
mum wage under the FLSA).

                                    III.

   The Caretakers have not set forth any specific facts to support their
claim that the Caretakers’ Agreement is unreasonable under 29 C.F.R.
§ 785.23. During their twenty-four hour duty, the Caretakers were
waiting to be engaged and thus not performing compensable work for
every hour that they were present in the park. In light of the nature
and unpredictability of the Caretakers’ duties, the district court was
correct to conclude that rent-free accommodation in exchange for
serving as a Caretaker was a reasonable agreement as a matter of law.
Indeed, there is no indication that the value of the rent-free accommo-
dation under-compensated the Caretakers for the FLSA work they
performed. Because the uncontroverted facts with regard to the Care-
takers’ claims for unpaid minimum wages and overtime compensation
demonstrate that Baltimore County is entitled to judgment as a matter
of law, the district court’s entry of summary judgment in favor of Bal-
timore County is

                                                              AFFIRMED.

Caretakers’ compensable duties took less than 32 hours a week to com-
plete. See post at 16. Baltimore County may discharge its burden as the
party moving for summary judgment "by ‘showing’ — that is, pointing
out to the district court — that there is an absence of evidence to support
the nonmoving party’s case." Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Baltimore County met this burden by demonstrating that during
extensive deposition testimony not one of the Caretakers testified to
spending over 32 hours a week on FLSA work. The Caretakers cannot
survive the motion for summary judgment, as the dissent appears to sug-
gest, by presenting evidence of the "kind of activities" that they regularly
performed and merely alleging that they were not appropriately compen-
sated for them. Fed. R. Civ. Pro. 56(e) ("When a motion for summary
judgment is made and supported as provided in this rule, an adverse
party may not rest upon mere allegations.").
                    MYERS v. BALTIMORE COUNTY                       13
GREGORY, Circuit Judge, dissenting:

   In affirming the district court’s grant of summary judgment, the
majority misapprehends this Circuit’s holding in Kelly v. Hines-
Rinaldi, 847 F.2d 147 (4th Cir. 1989), and misapplies the test
announced in Skidmore v. Swift & Co., 323 U.S. 134 (1944). There-
fore, I respectfully dissent.

                                  I.

   In Kelly an employee filed a lawsuit alleging that his former
employer violated the Fair Labor Standards Act ("FLSA"), codified
at 29 U.S.C. § 201 et seq. (1982), by failing to pay him overtime. The
undisputed facts in Kelly are set forth below:

    Hines-Rinaldi hired Kelly on March 12, 1982 to perform
    light housekeeping duties during the hours of 9:00 p.m. to
    12 midnight and 6:30 a.m. to 8:30 a.m., six days per week.
    During the night hours between midnight and 6:30 a.m.
    Kelly occupied an apartment on the premises of the funeral
    home. This arrangement benefitted both parties, since a zon-
    ing ordinance required that someone live on the premises of
    the funeral home and Kelly paid nothing for the apartment.
    . . . Between midnight and 6:30 a.m., Kelly’s only duties
    were to answer the telephone, if it rang, and to go out and
    pick up a corpse if required. If the telephone was unan-
    swered in the funeral home after three rings, it was
    answered in one of three other residences where the tele-
    phone rang simultaneously. If the call involved a request to
    pick up a corpse, whoever answered the call would, in turn,
    call an assistant to help with the pick up. During the 20-
    month period prior to the filing of this lawsuit, there had
    been an average of 3.35 telephone calls and 2.2 trips to pick
    up corpses per month. The average time spent per trip was
    49.7 minutes.

Kelly, 847 F.2d at 147-48. Kelly sought overtime pay under the theory
that he was employed by Hines-Rinaldi from 9:00 p.m. to 8:30 a.m.
the next morning. The employer disagreed, arguing that Kelly was
merely waiting to be engaged during the time between shifts and,
14                   MYERS v. BALTIMORE COUNTY
therefore, was not working. The district court granted summary judg-
ment to the employer, finding as a matter of law that the time between
shifts was "waiting time" and, as such, was not compensable over-
time.

   As the majority recognizes at p. 6 of its opinion, "[T]here is no
legal formula to resolve the issue." Thus, the Supreme Court has
emphasized that whether waiting time is work time under the FLSA
raises "a question of fact to be resolved by appropriate findings of the
trial court. . . . Facts may show that the employee was engaged to
wait, or they may show that he waited to be engaged." Skidmore, 323
U.S. at 136-37; Kelly, 847 F.2d at 148.

   Acknowledging that the Skidmore test requires a fact-intensive
analysis, the Kelly court nonetheless found that summary judgment
was appropriate because "[t]he facts in this case are basically undis-
puted." 847 F.2d at 147. Importantly, those facts included a conces-
sion by the employee that he averaged no more than two hours of
work per month between the hours of midnight and 6:30 a.m.

   In the present case, there is no similar concession by the Appel-
lants. Although the Caretakers unreasonably seek compensation for
every hour that they were required to be present in the parks, this fact
should not preclude them from recovering under the FLSA for time
actually worked. The parks remained open from daylight to dusk, 365
days a year. J.A. at 178. Assuming an average of twelve hours of day-
light, the parks were open for business eighty-four hours a week.
Since Appellants were required to "be of assistance to park users"
while the parks were open to the public, there exists a legitimate fac-
tual question as to the amount of time worked by Appellants during
business hours. J.A. at 601.

   For example, Appellants were required to open the park gates in
the morning, close the gates in the evening, clean the bathrooms, pick
up trash, and perform moderate maintenance and repairs to the water
fountains, bathroom toilets, bleachers, and picnic tables. J.A. at 200-
01. Depending on park traffic, Appellants might be required to repeat
these tasks multiple times a day. J.A. at 209.

   On the limited record before this Court, it is impossible to quantify
the amount of time that the Caretakers spent in the performance of
                     MYERS v. BALTIMORE COUNTY                       15
their duties. There is nothing, for instance, indicating how long it
would take to clean one of the park’s bathrooms, or how many times
a day this job would need to be performed. Although these fact-laden
questions remain unanswered, the majority has elected to transform
the issue from a question of fact into a pure question of law.

                                  II.

   In making this transformation, the Court commits three errors. The
majority: (1) misapplies the standard for summary judgment; (2) mis-
interprets 28 C.F.R. § 785.23; and (3) misreads Kelly’s simple appli-
cation of Skidmore to create an entirely new rule for FLSA cases.

                                  A.

    On its motion for summary judgment, the burden is on Baltimore
County to show that "there is no genuine issue as to any material fact.
. . ." Fed. R. Civ. P. 56(c); Haulbrook v. Michelin N. Am., 252 F.3d
696, 702 (4th Cir. 2001). That is, the County must show that no rea-
sonable jury could conclude that Appellants were under-compensated
for at least some of the hours that they worked. As the majority
explains, "Dividing the weekly pay [$163.33] by the minimum hourly
wage [$5.15], . . . each Caretaker couple was compensated for no
more than 4.5 hours of work per day, approximately 32 hours per
week." Majority Op. at 11. Thus, the question for summary judgment
becomes whether a reasonable jury could find that the Caretakers
worked more than 4.5 hours per day.

   Despite the majority’s assertion to the contrary, the County’s
motion is not "properly-supported" on this point. Majority Op. at 8.
Appellee has presented no evidence to suggest that the Caretakers —
who opened and closed the parks, cleaned the restrooms, picked up
the trash, performed moderate maintenance, kept an eye out for poten-
tial vandals, and generally made themselves available to park users —
could not possibly have worked more than 4.5 hours a day.

   Instead of noting Appellee’s lack of evidence, the Court affirms the
district court’s grant of summary judgment because the non-movants
"have failed to set forth any specific facts." Majority Op. at 8. Admit-
16                   MYERS v. BALTIMORE COUNTY
tedly, the Caretakers have not provided a detailed accounting of the
exact hours they worked.* Yet, as explained above, it is not their bur-
den to prove conclusively that they worked more than thirty-two
hours a week. Appellants have presented evidence of the kind of
activities that they regularly performed as Caretakers. Because the
County has not proven that these duties took less than 4.5 hours a day
to complete, a legitimate factual issue remains. The movant has there-
fore failed to meet its burden under Rule 56(c), and summary judg-
ment is improper.

                                  B.

   The Court’s second error is in interpreting 28 C.F.R. § 785.23 to
require the Caretakers to "produce specific facts to . . . support their
assertion that they were ‘working’ within the meaning of the FLSA
the entire time they were present in the park." Majority Op. at 7
(emphasis added). The regulation states, "An employee who resides
on his employer’s premises on a permanent basis or for extended peri-
ods of time is not considered as working all the time he is on the
premises." 28 C.F.R. § 785.23. While this language creates a pre-
sumption that the Caretakers did not work twenty-four hours a day,
it does not require Appellants to prove that they were working "the
entire time" to be able to state a claim under the FLSA.

   As explained above, Appellants are entitled to damages under the
FLSA if they worked more than 32 hours per week. The evidence of
the Caretakers’ varied employment duties creates a genuine issue as
to this material fact that precludes summary judgment.

   *Appellants were seeking compensation for the full 24 hours that they
were required to be on premises each day. Apparently, they did not wish
to limit their FLSA claim by asserting that they worked a specific num-
ber of hours — more than 4.5 hours per day, but less than 24 hours. For
this reason, they did not submit any affidavits as to the exact hours
worked. Instead, their evidence focused on their daily employment
duties.
                     MYERS v. BALTIMORE COUNTY                         17
                                   C.

  The Court’s most serious error, however, is its suggestion that
Kelly v. Hines-Rinaldi narrows the application of Skidmore. The
majority explains:

     The Caretakers argue that under the Skidmore test, summary
     judgment is inappropriate because whether they were "en-
     gaged to wait" or "waiting to be engaged" is itself a material
     issue of factual dispute. This court, however, previously has
     rejected such a reading of Skidmore by determining that an
     employee was "waiting to be engaged" as a matter of law.

Majority Op. at 6-7. The majority does not point to any language in
Kelly that would limit Skidmore’s fact-based approach, or would
create a presumption in favor of employers.

   The sole issue before the Kelly court was "whether under the facts
of this case the hours between midnight and 6:30 a.m. are properly
considered working hours." 847 F.2d at 148. After reviewing the
undisputed facts, the court noted, "Numerous cases have held that
nighttime hours in circumstances similar to the situation presented by
this case are not working time." Id. The Court then applied Skidmore,
and affirmed the district court. In short, Kelly was nothing more than
the a straightforward application of Skidmore to the facts of one par-
ticular case. This Court, however, cites Kelly for the general proposi-
tion that time spent living on an employer’s premises will, as a matter
of law, be presumed to be for the employee’s benefit, not the employ-
er’s. See Majority Op. at 7 n. 5.

   In his concurrence in Kelly, Judge Murnaghan worried that future
courts might misunderstand the court’s holding, expanding it to estab-
lish just such a general rule of law. Such an expansion, he counseled,
would be a mistake. "A general rule of that type favoring the
employer could hold the potential for abuse . . . ." Kelly, 847 F.2d at
149. He continued, "Judge Chapman [in writing the majority opin-
ion,] has largely allayed my concerns by carefully confining his deci-
sion in a manner comporting with the finest traditions of Anglo-
American jurisprudence and deciding only ‘under the facts of this
case.’ As he points out, the question is preeminently one of fact . . . ."
18                  MYERS v. BALTIMORE COUNTY
Id. Despite this explicit warning, the majority today invents a new,
broadly worded rule.

   Because this rule directly contradicts Skidmore’s pronouncement
that these FLSA claims involve "question[s] of fact to be resolved by
appropriate findings of the trial court," I respectfully dissent.
