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

### AUG 19 1997 

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

TENTH CIRCUIT

MICHAEL ANDREWS, Plaintiff-Appellant, v. TOWN OF SKIATOOK, OKLAHOMA, Defendant-Appellee. No. 96-5075

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 95-C-0057-M)
Eric B. Bolusky, Huffman, Thomas & Bolusky, Tulsa, Oklahoma, for PlaintiffAppellant. Jay C. Baker, Tulsa, Oklahoma, for Defendant-Appell ee.

Before ANDERSON, BALDOCK, and EBEL , Circuit Judges.

EBEL , Circuit Judge.

Michael Andrews was an emergency medical technician (EMT) employed by the ambulance service of the Town of Skiatook, O klahoma. Andrews worked four twelve-hour shifts per week, for which he was compensated. He was on call1 Every third week, Andrews was required to work five on-call shifts.

2 The parties consented to final disposition by the m agistrate judge pursuant to 28 U.S.C. § 636(c). Therefore, we have jurisdic tion to review the magistrate judge's decision without the intervening considerat ion of the district court. Grimsley v. MacKay , 93 F.3d 676, 678 (10th Cir. 1996).

3 We review a decision rendered by a magistrate judge pursuant to 28 U.S.C. § 636(c) using the same standards that we apply to a decision of a district court. Grimsley , 93 F.3d at 679. Thus, we have reviewed the issue s of law de novo and the findings of fact under a clearly erroneous stan dard. Id

. - 2 - during four twelve-hour shifts per week, for which he was not compensated. 1 Andrews brought an action against the town, claimin g that the hours he was on call were compensable under the Fair Labor Standard s Act because of the restrictions placed on his personal activities duri ng on-call time. By the parties' consent the action was tried to a m agistrate judge who rejected Andrews' claim, finding that the time he s pent on call was "predominantly for his personal benefit" and not fo r the benefit of his employer. 2 Andrews appeals. The magistrate judge expressed his decision in well -reasoned Findings of Fact and Conclusions of Law with which we substanti ally agree. 3 We thus attach the Findings of Fact and Conclusions of Law as an Appendix and AFFIRM for substantially the reasons stated therein.- 3 - APPENDIX UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA
MICHAEL ANDREWS, ) ) PLAINTIFF, ) ) CASE NO. 95-C-0057-M vs. ) ) TOWN OF SKIATOOK, OKLAHOMA, ) ) DEFENDANT. )

FINDINGS OF FACT/CONCLUSIONS OF LAW The parties consented to trial before a United Stat es Magistrate Judge pursuant to 28 U.S.C. § 636(c). This Court conduc ted a non-jury trial on January 22, 1996 and January 31, 1996. Based upon the evid ence presented at trial, the argument of counsel and the proposed Findings of Fa ct and Conclusions of Law and supporting briefs submitted by both parties, th e Court hereby issues its FINDINGS OF FACT AND CONCLUSIONS OF LAW.- 4 - FINDINGS OF FACT

1. Plaintiff, Michael Andrews, is a resident of the town of Skiatook, State of Oklahoma, and was employed by the Town of Skiatook as an Emergency Medical Technician (EMT) from February 28, 1993 to January 6, 1995. 2. Defendant, Town of Skiatook, is a political subdi vision of the State of Oklahoma, existing under the laws of the State o f Oklahoma, and was engaged in the business of managing, maintaining and operat ing an emergency ambulance service at all times relevant to this litigation. 3. During his employment as an EMT with the Town of Skiatook, Plaintiff was required to work four regular twelve- hour shifts per week and four twelve-hour on-call shifts per week which immediate ly followed his regular twelve-hour shift. Every third week Plaintiff was required to work one additional twelve-hour on-call shift. EMTs were permitted to trade their on-call shifts with another EMT and would then be expected to pay back the other EMT by covering an on-call shift for him/her. 4. The Town of Skiatook operated two emergency ambul ances. One ambulance was staffed by two EMTs who remained at t he ambulance station. The second ambulance was staffed by two “on-call EMTs” who were required to respond to calls in the second ambulance when an em ergency call was received- 5 -

while the first ambulance was on another run. A ca ll serviced by the second ambulance staffed by on-call EMTs is called a “seco nd run.” 5. While on-call, Plaintiff was required to monitor a pager which could be utilized to summon him for a second run. In add ition to summoning the oncall personnel, the pager would advise the on-call personnel when the first ambulance had gone on a run. On-call EMTs could al so monitor a police radio, which would advise them when the first ambulance ha d completed its run and returned to the ambulance station. Thus, the on-ca ll EMTs would be aware when the first ambulance was on a run and there was an i ncreased likelihood they could be summoned to make a second run. 6. While on-call, the EMTs were required to remain c lean and appropriately attired, although not required to rep ort in uniform, to refrain from drinking alcohol, and to respond to an on-call page within a reasonable period of time. 7. Conflicting evidence was presented to the Court c oncerning the required response time for on-call EMTs to begin a second run. Plaintiff presented evidence that the Town of Skiatook requir ed on-call EMTs to respond and be physically moving in the second ambulance wi thin five minutes of receiving a page for a second run. Defendant prese nted evidence that there was no official policy that on-call EMTs respond and be rolling on a call within five- 6 -

minutes of receiving the page. Rather, Defendant c ontended that on-call EMTs were only required to respond and be rolling in a r easonable time. 8. Defendant’s Exhibit 12 sets forth Plaintiff’s act ual response time for the 76 second runs he made during his approximately two years of employment with Defendant. The response time is the number of minutes it took for Plaintiff to respond to the page and be rolling in the ambula nce. Plaintiff averaged a response time of 4.84 minutes. Plaintiff took more than five minutes to respond to 28 of the calls, the longest being 13 minutes. Plaintiff's response times ranged from zero (0) minutes, which was explained by his p resence at the ambulance station when the call was received, to a high of 13 minutes. Plaintiff was never disciplined for response times in excess of 5 minut es. Based upon the evidence presented and the credibili ty determinations made by the Court, the Court finds that there was not an official policy of Defendant requiring on-call EMTs to respond and be rolling on a second run within five minutes of receiving the page. However, the Court finds that there was an established practice of Defendant which required on -call EMTs to respond to a page for a second run promptly and that this practi ce resulted in a practical requirement that on-call EMTs respond to a page fora second run and be rolling within five to ten minutes of receiving a page.- 7 -

9. Plaintiff was not compensated for the time spent on-call unless he was called back to make a second run, in which case , Plaintiff was compensated for a minimum of two hours at time and one/half pay . Of the 76 second runs Plaintiff made, none lasted more than two hours. 10. In 1993, the Town of Skiatook ambulance service made a total of 1,071 runs, 115 of which were second runs. Plainti ff made 28 second runs. 11. In 1994, the Town of Skiatook ambulance service made a total of 1,171 runs of which 140 were second runs. Plaintif f made 48 second runs. 12. Plaintiff worked ten months in 1993. At four on -call shifts per week and one extra on-call shift every three weeks, Plai ntiff would have worked a total of 173 on-call shifts in 1993. Considering that Pl aintiff went on 28 second runs in 1993, the Court calculates that Plaintiff was ac tually called back to service during 16.18% of his on-call shifts in 1993. 13. Plaintiff worked a full twelve months in 1994. At four on-call shifts per week and one extra on-call shift every three we eks, Plaintiff would have worked a total of 209 on-call shifts. Considering that Plaintiff went on 48 second runs in 1994, the Court calculates that Plaintiff w as called back to service during 22.96% of his on-call shifts in 1994. 14. Considering the total number of all second runs for the Skiatook ambulance service in relation to the total number o f ambulance calls for the- 8 -

Skiatook ambulance service, based on Defendant's Ex hibit 12, the Court concludes that in 1993, second runs were required i n 10.7% of the total number of calls, while in 1994, second runs were required in 11.9% of the total number of calls. CONCLUSIONS OF LAW This Court has jurisdiction of this matter pursuantto the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. and 28 U.S. C. § 1337. Defendant Town of Skiatook is a public agency and employer within the meaning of the Fair Labor Standards Act, is located within the jurisdiction o f this Court, and is subject to the provisions of the Fair Labor Standards Act. The test to determine whether an employee's on-call time constitutes working time is whether the time is spent predomina ntly for the employer's benefit or for the employee's. Armour & Co. v. Wantock, 323 U.S. 126, 65 S. Ct. 165, 89 L. Ed. 118 (1944). That test requires cons ideration of the agreement between the parties, the nature and extent of the r estrictions, the relationship between the services rendered and the on-call time and all surrounding circumstances, Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161, 89 L. Ed. 124 (1944). The 10th Circuit has consistently adhered to the ab ove principles in addressing the issue of the compensability of on-ca ll time. See generally Gilligan- 9 -

v. City of Emporia, Kansas, 986 F.2d 410 (10th Cir. 1993)(no on-call compensation for water and sewer employees required to wear pager, stay sober and report within 30 minutes); Armitage v. City of Emporia, Kansas, 982 F.2d 430 (10th Cir. 1992)(no on-call compensation for detect ives required to wear pager, stay sober, report within 20 minutes where called l ess than 2 times per week); Renfro v. City of Emporia, Kansas, 948 F.2d 1529 (10th Cir. 1991)(on-call compensation awarded to firefighters required to re port within 20 minutes where the number of call-backs could be as high as 13 pershift and averaged 3-5 per shift); Boehm v. Kansas City Power & Light Company, 868 F.2d 1182 (10th Cir. 1989)(no on-call compensation for power company lin esmen who were required to be reachable by telephone and to accept call-out s 1/3 of the time called); Norton v. Worthen Van Service, Inc., 839 F.2d 653 (10th Cir. 1988)(no on-call compensation for van drivers required to report wit hin 15-20 minutes). In addition to the authorities set forth above, the Court has also considered the following regulations promulgated by the United States Dept. of Labor concerning the compensability of on-call time: An employee who is required to remain on call on th e employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call”. A n employee who is not required to remain on the employer's premise s but is merely required to leave word at his home or with company officials where he may be reached is not working while on call. 29 C.F.R. § 785.17.- 10 -

Time spent away from the employer's premises under conditions that are so circumscribed that they restrict the employe e from effectively using the time for personal pursuits also constitut es compensable hours of work. 29 C.F.R. § 553.221(c). Resolution of the matter involve[s] determining the degree to which the employee could engage in personal activity whil e being subject to being called. 29 C.F.R. § 553.221(b) [sic] [cite s hould be to Renfro , 948 F.2d at 1537, quoting Norton , 839 F.2d at 655].
Of the five 10th Circuit cases cited above, in fourof the cases the court held that time spent on-call is not compensable. T he sole 10th Circuit authority finding on-call time compensable is Renfro, supra. Plaintiff argues that his case is controlled by the decision in Renfro

. This Court disagrees. InRenfro the firefighters, although not required to remain o n the premises while on-call, were required to report to the stati on within twenty minutes of being called back, were called back as many as 13 t imes in one shift, and averaged 3 to 5 callbacks per on-call shift. In Renfro, the 10th Circuit affirmed the district court which found: [T]he frequency with which Emporia firefighters are subject to callbacks readily distinguishes this case from cases wh ich have held that on-call time is non-compensable. In many of those cases, the probability of an employee being called in, and thu s, the probability of disruption of the employee's personal activities , was minimal. Renfro v. City of Emporia, Kansas, 729 F. Supp. 747, 752 (D. Kan. 1990). The infrequencyof callbacks in this case distinguishes it from Renfro.- 11 -

Instead of being called back to work on average bet ween 3 to 5 times per on-call shift, Plaintiff was only called back 16.18 % of the time during his on-call shifts in 1993 and 22.96 % of the time for his on-c all shifts in 1994. Further, when all on-call second runs are calculated, any EM T on-call for Defendant was required to respond to a second run only 10.7 % of the time in 1993, and 11.9% of the time in 1994. This major difference in the num ber of times Plaintiff was called back as compared to the firefighters in Renfro clearly distinguishes the present case from Renfro and aligns it squarely with Gilligan, Armitage, Boehm and Norton, supra

. Plaintiff also relies on an opinion letter of the W age/Hour Administrator of the Dept. of Labor, No. 1609, wherein the Wage/HourAdministrator opined as follows: On-call time of ambulance personnel who were requir ed to either remain at an establishment while on call or be ready to respond from their home within three minutes was compensable tim e. The threeminute response requirement was too restrictive foremployees to use on-call time effectively for their own purposes. However, the opinion letter gives no more than this bare-boned factual statement focusing completely upon the 3 minute response time . As noted above, the Court finds that the required response time in this case ranged between 5 and 10 minutes with a low incidence of actually being called for asecond run while on-call.- 12 -

These facts render the conclusion reached in the op inion letter relied upon by Plaintiff inapplicable to the instant case. The situation in this case is closer to Spires v. Ben Hill County , 745 F. Supp. 690 (M.D. Ga. 1990), than it is to either Renfro or the opinion letter. In Spires the court held that EMTs on-call who were required to respond to the station within ten minutes of receiving a call, in uniform or jumpsuit, clean and sober, and who also worked greater than 8 hours per24 hour on-call period did not qualify for on-call compensation because the re strictions did not preclude them from effectively using their time for personal pursuits. While the Court certainly acknowledges that Plainti ff’s time on-call somewhat restricted his personal activities; the te st is not whether there was some restriction on Plaintiff’s personal activities. Rather the test is whether Plaintiff’s on-call time was spent predominantly for the benefi t of his employer. In Bright v. Houston Northwest Medical Center Survivor, Inc., 934 F.2d 671 (5th Cir. 1991), the Court observed: As noted, we have described “the critical issue” in cases of this kind as being “whether the employee can use the [on-call ] time effectively for his or her own purposes”. This does not imply that the employee must have substantially the same flexibility or fre edom as he would if not on call, else all or almost all on-call time wo uld be working time, a proposition that the settled case law and the adm inistrative guidelines clearly reject. [ citations omitted] Id . at 677.- 13 -

On the facts before this Court, it is clear that Pl aintiff’s on-call time was predominantly for his personal benefit. While on-c all, Plaintiff was free to engage in any activity of his choosing as long as h e remained clean, did not drink alcohol and could respond to the ambulance station within five to ten minutes. The five to ten minute requirement gave Plaintiff a ccess to all of the small town of Skiatook. Further, the fact that Plaintiff was notified when the first ambulance had gone on a run enabled Plaintiff to prepare for the possibility of a second run and to structure his activities so his on-call time would be as least restrictive as possible. In this regard it is fair to conclude th at Plaintiff felt only slight restrictions on his personal activities while the f irst ambulance was not out on a call. It was only when the first ambulance was outon a call that Plaintiff had any significant chance of having to respond to a second run call and, based upon actual experience, Plaintiff knew that the percenta ge of time when a second run call would be required was small. Thus, Plaintiff was predominantly free to pursue his personal activities during his on-call t ime. Additionally, the Court would note that even when P laintiff had to respond to a second run, the time entailed was uniformly le ss than two hours. Thus, the times when Plaintiff’s personal affairs were distur bed while he was on-call were of low frequency and of short duration. As stated by the Court in Armitage,
supra, at page 433:- 14 -

Although the detectives’ services are certainly ben eficial to the public, to require compensation under these facts w ould require that all on call employees be paid for standby time. Th is would be a major change in the law of the FLSA. Such is the case before this Court and this Court l ikewise declines to require the major change in the law of the FLSA that compensati on of on-call time in this case would entail. Based upon the above FINDINGS OF FACT AND CONCLUSIO NS OF LAW, the Court finds that Plaintiff has failed to p rove by a preponderance of the evidence that his on-call time was spent predominan tly on behalf of Defendant employer. THE COURT, THEREFORE, FINDS IN FAVOR OF DEFENDANT. Judgment will be entered accordingly. DATED this 14th day of February, 1996.

FRANK H. McCARTHY UNITED STATES MAGISTRATE JUDGE