## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 20 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN LEE BRAZIEL, LISA M. MONTOYA, ROBERT P. CURRY, PEDRO B. QUINONES, FELIPE J. KIEDAISCH,

Plaintiffs-Appellants, and WILLIAM RUSSELL, EDDIE L. LEWIS,

Plaintiffs,

v. TOBOSA DEVELOPMENTAL SERVICES, a nonprofit New Mexico corporation, Defendant-Appellee. No. 97-2288

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-96-893-LFG)

Submitted on the briefs: W.T. Martin, Jr., Carlsbad, New Mexico, for Plainti ffs-Appellants.1 Original plaintiffs William “Bill” Russell and Eddi e L. Lewis were

dismissed by the district court and have not appealed.

2 Plaintiffs Braziel and Curry also originally assert ed wrongful termination claims under state law. The parties agreed, in a s tipulated motion, to dismiss Curry’s termination claim. The district court granted summary judgment to Tobosa on Braziel’s wrongful termination claim. Be cause Braziel presents no argument regarding the termination claim, he is dee med to have abandoned it on appeal. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). -2- Deborah D. Wells of Kennedy, Moulton & Wells, P.C., Albuquerque, New Mexico, for Defendant-Appellee.

Before PORFILIO, KELLY, and HENRY , Circuit Judges.

PORFILIO , Circuit Judge.

Plaintiffs-appellants appeal from the district court’s grant of summary judgment to defendant-appellee Tobosa Developmental Services on their claims for unpaid wages, damages, and attorney’s fees soug ht pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219. 1 Appellants brought individual complaints against Tobosa under the FLSA. 2Upon Tobosa’s motions for summary judgment, the district court ruled against appellants on all FLS A claims, filing five separate opinions and subsequent judgme nts. Our jurisdiction arises from 28 U.S.C. § 1291. We review the district court’s dispositions de novo,3 After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision 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. -3- applying the same legal standard as that court purs uant to Fed. R. Civ. P. 56(c).
See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Where there are no genuine issues of material fact in dispute, we exam ine the appropriate legal standards to determine whether the moving party is entitled to summary judgment as a matter of law. 3 See id. The following facts are undisputed: Tobosa is a no nprofit corporation which provides housing and residential care and sup ervision for developmentally disabled people. Appellants were in Tobosa’s emplo y as residential assistants, and as such, worked in homes leased by Tobosa, assi sting Tobosa’s clients with daily living tasks. While working as residential a ssistants, appellants each had their own bedrooms and often their own bathrooms, and use of the house’s kitchen facilities and other common amenities. Pla intiffs Braziel, Curry, and Montoya were scheduled to work shifts greater than twenty-four hours in length. All of appellants’ working schedules included overn ights. Although Tobosa and appellants did not discuss paym ent for sleep time when appellants were hired, all of them understood that it was Tobosa’s policy not to pay for time scheduled as sleep time, genera lly an eight-hour period from-4-

10:00 p.m. to 6:00 a.m. This policy had been in pl ace since 1988, before any of appellants were hired. None of appellants filed fo rmal grievances about this policy, although they were aware there was a grievance procedure in place. Several appellants did complain to supervisors and others about the sleep time policy after they had been in Tobosa’s employ as re sidential assistants anywhere from one month to six months. Tobosa had a policy of paying residential assistant s for any time they were disturbed during the night, if the disturbance was reported. Although some appellants alleged that they regularly got less than five hours sleep during the scheduled sleep time, they often did not report dis turbances as required by the policy. Several appellants said that they did not report disturbances because they thought the disturbances had to be major incidents and because other employees told them they wouldn’t get paid for that time. Ap pellants alleged generally that Tobosa did not follow its policy of paying for slee p time interruptions, however, none of them alleged reported disturbances for whic h they were not paid and none of them refused any paychecks from Tobosa. Regulations promulgated pursuant to the FLSA provid e that, absent an express or implied agreement to the contrary, sleep time and meal periods constitute hours worked. However, an employer and its employees may agree to exempt sleep time and, in the case of employees res iding on-site, other reasonable4 Plaintiff Curry also signed an express agreement th at he would not be paid

for scheduled sleep time; however the court’s impli ed agreement analysis applies to that period of time before the express agreementwas in place. -5- private time, from paid working time. See 29 C.F.R. §§ 785.22, 785.23. Where working shifts longer than twenty-four hours are sc heduled, adequate sleeping facilities must be furnished and interruptions in s leep time are counted as hours worked. If an employee cannot get at least five ho urs of sleep during the scheduled sleep period, the entire period counts as time worked. See id. § 785.22. Whether analyzed under § 785.22 as to work shifts g reater 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 between Tobosa and appellants to exempt scheduled sleep periods from hours worked. The district court granted summary judgment to Tobosa because itconcluded, on the relevant facts discussed above, that an implied agreement ex isted that appellants would not be paid for scheduled sleep time. 4See Appellant’s App., Vol. III, at 575-78, 586-88, 595-98, 605-07, 615-16. On appeal, appellants argue that the district court erred, relying on an unpublished order and judgment from this court, Brown v. City of Oklahoma City , No. 93-6389, 1994 WL 721389 (10th Cir. Dec. 23, 1994). They also rely on an Eighth Circuit case, Hultgren v. County of Lancaster , 913 F.2d 498 (8th Cir. 1990). Finally, they argue that an analysis of New Mexico-6-

law indicates that where the evidence conflicts or leads to more than one inference, the issue should be decided by a jury as an issue in fact. We agree with the district court both that an agreement to exempt sl eep time from paid work under the FLSA can be implied, and that the undisputed facts in this case compel the conclusion that there was an implied agreement to do so. Although it is clear from the record and appellants ’ pleadings that they became unhappy with the policy sometime after beginning th eir employment with Tobosa, it is equally clear that appellants understood and acquiesced to the policy when they were hired. See Ariens v. Olin Mathieson Chem. Corp. , 382 F.2d 192, 197 (6th Cir. 1967) (holding implied agreement existed where employees were informed of and acquiesced to working schedules exe mpting sleep time and accepted pay checks based on those schedules). Non e of appellants’ allegations regarding the administration of Tobosa’s sleep time policy or their subsequent complaints create genuine issues of material fact r egarding their understanding at the time they were hired. Therefore, appellants’ d iscussion of New Mexico law in the presence of disputed facts is inapposite. See Rivera v. Sagebrush Sales, Inc. , 884 P.2d 832, 835 (N.M. Ct. App. 1994) (holding that undisputed fact was sufficient to support implied contract for hire, as a matter of law).
Brown does not require a different result. The facts of that case differ significantly in that the subject of overtime pay f or sleep time periods was5 Further, Brown is an unpublished order and judgment and, under th e rules

of this court, not binding precedent. See 10th Cir. R. 36.3(A). -7- actually discussed in negotiations for a union contract between the parties. There, the parties’ inability to reach an agreement on thi s point conflicted with the employer’s position that an implied contract existe d. Thus, a genuine issue of material fact precluded summary judgment on the contract issue. See 1994 WL 721389, at **3. 5 Similarly, we are not persuaded otherwise by the Eighth Circuit’s opinion in Hultgren . There, employees were not given separate sleepin g facilities and nightly interruptions were so numero us that the employees could not get even several hours of sleep. See 913 F.2d at 500. The employer’s sleep time policy prohibited reporting interruptions lasting l ess than ten minutes and provided that the entire sleep time period would no t be paid for unless interruptions totaled three hours or more. See id. at 503. Further, although we recognize the Hultgren court’s ruling that there was no agreement to dedu ct sleep time because the sleep time policy was unilaterallycreated by the employer and contracts were presented to the employees on a take -it or leave-it basis, we disagree with appellant’s apparent argument that anemployer cannot enforce such an existing policy. This case does not involve a c hange in Tobosa’s sleep time policy imposed upon appellants after they began the ir employment with Tobosa.6 Plaintiffs Kiedaisch and Quinones did not present c laims regarding work

shifts less than twenty-four hours in length. Ther efore analysis of this regulation does not appear in the district court’s opinions addressing their claims. -8- The Eighth Circuit itself disagreed with this argument in a later case, see Bouchard v. Regional Governing Bd. , 939 F.2d 1323, 1330-31 (8th Cir. 1991). Finally, appellants argue that 29 C.F.R. § 785.23, addressing the deduction of sleep time from hours worked where employees res ide on an employer’s premises, should not apply because they did not res ide permanently in the houses where they worked as residential assistants. The district court held that this regulation applied to those appellants who worked s hifts less than twenty-four hours, noting appellants’ separate bedroom and bath room facilities, and concluding that the regulation does not require a continuous stay on site. See Appellant’s App., Vol. III, at 577, 598, 607. 6On appeal, appellants simply contend that disputed issues of fact exist which preclude the district court’s holding. We agree with the district court that, under the facts of this case, § 785.23 applied to appellants who brought claims f or work shifts less than twenty-four hours. The regulation does not require permanent residence, only that an employee reside on the premises “for extended pe riods of time.” 29 C.F.R. § 785.23.-9-

The judgments of the United States District Court f or the District of New Mexico granting summary judgment to defendant Tobos a on all of appellants’ claims under the FLSA are AFFIRMED.