                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                     June 28, 2006
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                        No. 05-30224
                                      Summary Calendar



       JEFFREY DEPRIEST,

                                                           Plaintiff-Appellant,

                                             versus

       RIVER WEST LP, doing business as River West Medical Center

                                                           Defendant-Appellee.



                    Appeal from the United States District Court for
                           the Middle District of Louisiana
                              (USDC No. 03-CV-01058)
           _________________________________________________________


Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

       DePriest appeals the district court’s summary judgment dismissal of his claims for

unpaid wages under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (FSLA) and


       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

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Louisiana state law, LA. REV. STAT. ANN. § 23:631. Reviewing the record under the same

standard as the district court, we affirm for the following reasons:

       1.     We have recognized that, while an employee’s right to a minimum wage

              and to overtime pay under the FSLA cannot be abridged by contract or

              otherwise waived, an agreement between the parties is relevant to the issue

              of compensability for periods during which an employee is required to be

              on-call or standby. Allen v. Atlantic Richfield Co., 724 F.2d 1131, 1135-36

              (5th Cir. 1984); C.M. Rousseau v. Teledyne Movible Offshore, Inc., 805

              F.2d 1245, 1248 (5th Cir. 1986). Whether on-call time is compensable

              working time depends upon the working agreements between the parties

              governing on-call work and the degree to which the employee is permitted

              or free to engage in personal activities during periods of idleness when he is

              subject to call. See 29 C.F.R. § 785.17 (2005); Rousseau, 805 F.2d at

              1248. Under the FSLA, an on-call employee is not entitled to “have

              substantially the same flexibility or freedom as he would if not on call,” and

              is not entitled to payment for on-call time if he is able to use it effectively

              for personal purposes, such as eating, sleeping, watching television, or

              engaging in other recreational activity. Bright v. Houston Northwest Med.

              Ctr. Survivor, Inc., 934 F.2d 671, 676-78 (5th Cir. 1991); Brock v. El Paso

              Natural Gas Co., 826 F.2d 369, 370 (5th Cir. 1987).

                     In this case, DePriest willingly entered into a written agreement for

                                              2
     work as a weekend radiology technician (RT) under which he would be

     compensated at a higher than usual hourly rate for the on-duty daytime

     weekend shifts and would be compensated for the nighttime weekend

     periods at a reduced on-call hourly rate plus a flat-rate per-procedure fee,

     regardless of how long each procedure took. While the parties dispute

     whether DePriest was required to stay at the hospital during the on-call

     periods, DePriest’s testimony indicated that he was able to engage in other

     personal activities during periods of idleness even if he was required to stay

     on hospital grounds. See Rousseau, 805 F.2d at 1248 (finding that on-call

     time spent by offshore oil derrick barge employees was noncompensable

     even though employees were required to remain onboard where employees

     were free to engage in leisure pursuits including sleep).

2.          Additionally, Department of Labor (DOL) regulations allow unpaid

     sleep periods during duty shifts exceeding twenty-four hours so long as

     adequate facilities are provided and the employee can get at least five

     hours’ sleep during the scheduled period. 29 C.F.R. § 785.22(b) (2005).

     The DOL has clarified that the five hours of sleep need not be five

     continuous uninterrupted hours of sleep. See Bouchard v. Reg’l Governing

     Bd. of Region v. Mental Retardation Servs., 939 F.2d 1323, 1332 (8th Cir.

     1991) (citing DOL WH Pub. 1459, “State and Local Government

     Employees Under the Fair Labor Standards Act,” May 1985).

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            Here, the record reflects that, during the nights of DePriest’s tenure

     as the weekend RT for which he provided procedure times, he was afforded

     the opportunity to obtain reasonable periods of sleep totaling at least five

     and up to eight hours during the scheduled on-call period on all but three or

     four occasions. See Roy v. County of Lexington, South Carolina, 141 F.3d

     533, 546-47 (4th Cir. 1998) (finding that county emergency medical service

     employees were not entitled under FLSA to compensation during eight-hour

     sleep periods where, during sample period, only 35% of sleep periods were

     interrupted to such extent that employees got less than five hours of sleep).

     DePriest was compensated according to the agreement between the parties

     for all recorded sleep time interruptions via per-procedure pay. DePriest’s

     own testimony reflects that he was afforded adequate sleeping and bathing

     facilities as well as ready access to food facilities.

3.   While DePriest argues in his brief that River West’s on-call procedure time

     analysis relies on estimates and does not include allowances for patient pick

     up and drop off, River West’s analysis is based on DePriest’s own

     procedure log times. DePriest adduced no proper summary judgment

     evidence of record to support his argument that the sleep time interruptions

     were understated by River West. See Solo Serve Corp. v. Westowne

     Assoc., 929 F.2d 160, 164 (5th Cir. 1991) (holding that only evidence,

     rather than argument in a brief or facts alleged in a complaint, will satisfy

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            the non-movant’s burden under summary judgment). Accordingly,

            although the question of whether waiting time is working time depends on

            all the circumstances of the particular case, summary judgment is

            appropriate as a matter of law where the material facts are undisputed and

            the summary judgment record contains insufficient evidence to support a

            finding that on-call time was working time. See Bright, 934 F.2d at 674-75.

    4.      Because we find that the district court did not err in concluding that

            DePriest’s time spent off duty but on call within the confines of the hospital

            was noncompensable time under the FSLA, we hold that it was also proper

            for the court to dismiss DePriest’s state law claim. Absent a valid claim for

            additional compensation for the on-call periods, DePriest has no claim for

            wages unpaid upon termination under LA. REV. STAT. ANN. § 23:631.

AFFIRMED.




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