United States District Court, D. Alaska
ORDER ON MOTION FOR SUMMARY JUDGMENT (DKT.
15)
TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
The
matter comes before the Court on Defendant Shoreside
Petroleum, Inc.'s (“Shoreside”) Motion for
Summary Judgment (the “Motion”).[1] Shoreside seeks
summary judgment on the two claims at issue: Plaintiff Danesh
Varner's (“Varner”) claim for unpaid overtime
wages under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.,
and his claim for racial discrimination and retaliatory
discharge under the Civil Rights Act, 42 U.S.C. §
1981.[2] The Motion was fully
briefed.[3] The parties have not requested oral
argument and the Court finds that it would not be helpful.
For the reasons stated below, Shoreside's Motion for
Summary Judgment at Docket 15 is GRANTED.
II.
BACKGROUND
This is
an employment action, removed from the Superior Court from
the State of Alaska and brought against Shoreside under the
FLSA and the Civil Rights Act.[4] Varner's Complaint advances
two claims.[5] First, Varner claims that Shoreside failed
to pay him for over 5, 776 hours of overtime in violation of
the FLSA.[6] Second, Varner claims that while employed
at Shoreside, he was subject to racial discrimination and
unlawful retaliation in violation of the Civil Rights
Act.[7]
Varner has since conceded his claims under the Civil Rights
Act and only advances his FLSA claim.[8] The relevant evidentiary
record is largely undisputed by the parties and is summarized
below.
A.
Varner's Employment at Shoreside
“Shoreside
is an Alaska corporation that distributes fuel and lubricants
throughout the state.”[9] Shoreside's main office and
distribution center is located in Anchorage,
Alaska.[10] In June 2010, Varner was hired to work
as a truck driver for Shoreside.[11] Nearly one year later, in
May 2011, Varner became a dispatcher.[12] As a
dispatcher for Shoreside, Varner would dispatch fuel delivery
drivers to customers in locations throughout
Alaska.[13] He was “the first point of contact
for [Shoreside's] customers and delivery truck
drivers.”[14] During the day, Varner would work from
Shoreside's Anchorage distribution center.[15] Additionally,
“Shoreside [found] it necessary to provide 24 hour
coverage to meet customer needs.”[16] Therefore,
outside of business hours, Varner routinely carried
Shoreside's “after-hours”
phone.[17] As a dispatcher, Varner was responsible
for “answering the on-call phone, dispatching drivers,
and responding to any customer or internal needs during
non-business hours.”[18]
Varner
describes his work schedule as being irregular.[19] Varner
asserts that, at first, no one told him what time he was
expected to begin his dispatcher shift each
day.[20] However, he claims he was told near the
end of his tenure as dispatcher that he was expected to begin
work at 8:00 a.m.[21] Nevertheless, Varner states that he
would usually begin his day shift around 5:00 a.m. in order
to complete paperwork for Shoreside's linehaul department
and transmit it to Shoreside's Seward office before the
start of business.[22] Varner recalls that Shoreside closed its
main office at 6:00 p.m. each day.[23] However, depending on
what occurred during business hours that day, Varner states
that he may have stayed much later.[24] Varner-to his
recollection-never memorialized the hours that he worked
during the day on a timesheet.[25] Instead, Varner asserts that
he would inform his supervisors of the time he had
worked.[26] Accordingly, Varner admits that he was
paid for all hours he worked in the office.[27]
After
he completed his day shift, Varner was required to transfer
all of Shoreside's incoming calls to the mobile
after-hours phone, which he was required to keep after
business hours.[28] During his time after-hours, Varner was
expected to receive and respond to every incoming
call.[29] In some cases, Varner would need to
travel “on-site” to handle situations that arose
after-hours.[30] In his first year as dispatcher, Varner
was responsible for the after-hours phone every day, other
than days he had taken a leave of absence from
work.[31] Varner states that beginning his second
year as dispatcher, Varner would be relieved from the
after-hours phone every other weekend.[32] Varner claims
that he was never told, in advance, when or if he could turn
off the after-hours phone.[33]
Before
November 2015, Shoreside compensated Varner for carrying the
after-hours phone by paying him a minimum of two hours of
overtime pay for each week he held the phone.[34] For weeks in
which he worked more than two hours, he was required to
report those additional hours so that he could be compensated
accordingly.[35] In October 2015, Varner raised concerns
about his after-hours work schedule and pay arrangement with
Trina Kindred, Shoreside's Human Resource
Manager.[36] Subsequently, Shoreside developed a
Dispatcher Compensation Agreement.[37] Around the time the
Dispatcher Compensation Agreement was drafted, Shoreside
implemented a new rotation for the after-hours
phone.[38] Under the new rotation, someone other
than Varner carried the after-hours phone every other week
and for two days of the weeks Varner carried the
phone.[39]Additionally, beginning November 2015,
Shoreside compensated those who held the after-hours phone
for a minimum of two hours of overtime each
day.[40] Like before, under the new payment
scheme, employees who carried the after-hours phone were
required to report hours worked in excess of two hours in
order to receive overtime payment for the excess
hours.[41]
While
working for Shoreside, Varner “did not document each
minute spent answering calls to the after-hours phone, or
document each and every minute spent driving to a spill site
to assist with cleanup during the after-hours
shift.”[42] Nevertheless, it is undisputed Shoreside
was aware of the days he carried the after-hours
phone.[43] During the period between February 13,
2014 and October 24, 2015, Varner was paid a regular wage of
$23.75 per hour and an overtime wage of $35.63 per
hour.[44] After October 24, 2015, Varner's
compensation increased to $24.55 for regular hours and $36.83
for overtime hours.[45]
In
2016, Shoreside installed a dispatch computer program and
decided to eliminate the position of
dispatcher.[46] Varner worked as a dispatcher until
October 15, 2016 and, after the dispatcher position was
eliminated, was transitioned back into the role of truck
driver.[47] In 2017, Varner filed a complaint with
the Anchorage Equal Rights Commission and the United States
Equal Employment Opportunity Commission
(“EEOC”).[48] Subsequently, on April 14, 2017,
Varner announced his resignation from
Shoreside.[49]
III.
LEGAL STANDARD
Summary
judgment is appropriate where, viewing the evidence and
drawing all reasonable inferences in the light most favorable
to the nonmoving party, [50] “the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”[51] Material
facts are those which might affect the outcome of the
case.[52] A genuine issue of material fact exists
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving
party.”[53] “There is no genuine issue of fact
if, on the record taken as a whole, a rational trier of fact
could not find in favor of the party opposing the
motion.”[54] A movant's burden may be met by
“‘showing'-that is, pointing out to the
district court-that there is an absence of evidence to
support the nonmoving party's case.”[55]
Once a
movant has met its initial burden, Rule 56(e) requires the
nonmoving party to go beyond the pleadings and identify facts
which show a genuine issue for trial.[56] “[W]hen
simultaneous cross-motions for summary judgment on the same
claim are before the court, the court must consider the
appropriate evidentiary material identified and submitted in
support of both motions, and in opposition to both motions,
before ruling on each of them.”[57] Finally,
“[w]here . . . the case turns on a mixed question of
fact and law and the only disputes relate to the legal
significance of undisputed facts, the controversy is a
question of law suitable for disposition on summary
judgment.”[58]
IV.
ANALYSIS
Shoreside
moves for summary judgment on both claims raised in
Varner's complaint.[59]Namely, that Shoreside failed to pay
him for over 5, 776 hours of overtime in violation of the
FLSA and that while employed at Shoreside, Varner was subject
to racial discrimination and unlawful retaliation in
violation of the Civil Rights Act.[60] In his Response, Varner
concedes his discrimination and retaliation
claims.[61]
Accordingly,
Shoreside's Motion for Summary Judgment is
GRANTED as to Varner's claims brought
under the Civil Rights Act.
The
Court now turns to Shoreside's Motion as it relates to
Varner's FLSA claim. Shoreside argues that Varner has
failed to meet his burden to prove any of the elements of an
FLSA claim.[62]First, Shoreside argues that Varner was
not entitled to overtime pay for all the time he carried the
after-hours phone-rather, he was only entitled to payment for
time actually spent responding to calls.[63] Second,
Shoreside argues that Varner is unable to show that Shoreside
had actual or constructive knowledge of his overtime
work.[64] Third, Shoreside argues that Varner
cannot prove the amount of time he actually worked as a
matter of just and reasonable inference.[65]
In his
Response, Varner contests each of Shoreside's arguments.
First, Varner argues that the nature of Varner's duties
and limitations while holding the after-hours phone entitled
him to overtime pay for every hour he held the after-hours
phone.[66] Second, Varner argues that Shoreside had
actual knowledge of the time Varner spent on-call, and
therefore, knew of his overtime work.[67] Third, Varner
argues, since there is no dispute of the nights he worked as
the after-hours dispatcher, there is a clear accounting of
the time for which Varner is entitled to
payment.[68]
Under
the FLSA, for a workweek longer than forty hours, employers
must pay their employees “a rate not less than one and
one-half times the regular rate at which he is
employed.”[69] To prevail on an unpaid overtime claim
under the FLSA, a plaintiff must prove the following four
elements: (1) the uncompensated activity constitutes
“work, ” (2) the time worked is not de minimis
and is reasonable in relation to the principal activity (3)
the employer had actual or constructive knowledge of the
plaintiffs overtime work, and (4) the amount of time
worked.[70] Plaintiffs can carry their burden on the
fourth element by proving they “performed work for
which [they] [were] improperly compensated” and
producing “sufficient evidence to show the amount and
extent of that work as a matter of just and reasonable
inference.”[71]
A.
Whether Varner's Uncompensated Time with the After-Hours
Phone Constituted “Work”
Varner
claims that he was on duty “[a]s soon as
Shoreside's business phones were transferred to the
after-hours dispatcher phone” and “not completely
relieved of his duties until the phone was transferred back
the next morning.”[72] Based on this understanding, Varner
has provided calendars which document his estimation of the
number of hours he worked as Shoreside's after-hours
dispatcher.[73] Ultimately, he claims that February 13,
2014 through October 24, 2015, he worked 8, 220.5 hours of
unpaid overtime, and between October 25, 2015 through October
10, 2016 he worked 3, 753.5 hours of unpaid
overtime.[74] Using his overtime hourly wage during
these periods, Varner claims to be entitled to $431,
137.83.[75]
Numerous
courts have addressed the question now before the
Court-whether an employee is entitled to compensation for
time spent on-call.[76] However, there is no bright-line rule,
which mandates an outcome in any given case. Rather, as the
Supreme Court has stated, “no principle of law found
either in the statute or in Court decisions precludes waiting
time from also being working time[, ] we cannot . . . lay
down a legal formula to resolve cases so varied in their
facts as are the many situations in which employment involves
waiting time.”[77] To guide courts in determining whether
time spent “on-call” is compensable, the Ninth
Circuit counsels that “the two predominant factors in
determining whether an employee's on-call waiting time is
compensable overtime are (1) the degree to which the employee
is free to engage in personal activities; and (2) the
agreements between the parties.”[78]
1.
Whether Varner Was Free to Engage in Personal Activities
While Holding the After-Hours Phone
In
Owens, the Ninth Circuit articulated a
non-exhaustive list of factors to consider whether an
employee's “waiting” time allows him to use
his time effectively for his own purposes.[79] The factors
include:
(1) whether there was an on-premises living requirement; (2)
whether there were excessive geographical restrictions on
employee's movements; (3) whether the frequency of calls
was unduly restrictive; (4) whether a fixed time limit for
response was unduly restrictive; (5) whether the on-call
employee could easily trade on-call responsibilities; (6)
whether the use of a pager could ease restrictions; and (7)
whether the employee had actually engaged in personal
activities during call-in time.[80]
“Because
[n]o one factor is dispositive, a court should balance the
factors permitting personal pursuits against the factors
restricting personal pursuits to determine whether the
employee is so restricted that he is effectively engaged to
wait.”[81]
Varner
argues the Owens factors are inapplicable to this
case.[82] He contends that Owens
considered employees who remained on-call even though they
were off-duty while Varner was “never
‘off-duty.'”[83] However, this argument assumes
the ultimate question before the Court. The purpose of
applying the Owens factors is to determine whether
an employee is “working” while
on-call.[84] Here, it is not disputed that Varner was
on-call while he held the after-hours phone.[85]However, it is
vigorously disputed whether or not the nature of his
responsibilities rendered him “working, ” under
the FLSA, for the entire time he held the after-hours
phone.[86] Therefore, the Owens factors
are appropriately applied here.
a.
Whether There Was an On-Premises Living Requirement
It is
undisputed that Varner was not required to live on
Shoreside's premises while he held the after-hours
phone.[87] Therefore, this factor weighs against a
finding that Varner's time on-call was compensable.
b.
Whether There Were Excessive Geographical Restrictions on
Varner's Movements
Courts
applying the second Owens factor have examined
geographical restrictions in two ways. First, some courts
have determined geographical restrictions by the transmission
radius of radios or where employees are required to stay
within earshot of a phone or alarm.[88] However, other courts
have looked to whether a required response time places a
de facto geographic restriction on the
employee.[89]
In
Brigham, employees at a hydroelectric plant were
required to remain within earshot of their home phones and
alarm systems.[90] If an employee received an emergency
call, they were obligated to reach the work-site “as
soon as humanly possible.”[91] The Brigham
Court reasoned that “[b]ecause the employees had to be
able to hear their phones ring at all times and were required
to respond instantaneously to alerts and calls while on their
duty shifts, they were effectively tethered to their
homes.”[92] Thus, the geographic restrictions in
Brigham were “severe.”[93]
In
contrast, Berry concerned on-call coroners who were
required to respond to death reports within fifteen minutes
of a page or telephone call.[94] For example, when the on-call
coroner received a death report, the coroner either conducted
an investigation by telephone and, depending on the nature of
the case, visited the scene.[95] However, the court noted,
“this required response is substantially different than
being required to return to the employer's premises
within twenty minutes[, ]” and concluded “the
required response by telephone or two-way radio within
fifteen minutes is not a factor prohibiting the coroner's
personal pursuits.”[96]
Here,
Varner stated that no one at Shoreside told him that he could
not go beyond a certain geographical range.[97] The
undisputed facts on the record indicate that Varner was
rarely required to report to a specific location when
responding to a call on the after-hours phone.[98] Therefore,
Shoreside's required response time-to the extent it
existed-did not render Varner's geographic restrictions
excessive.
However,
while holding the after-hours phone, Varner was required to
remain within cellphone coverage in order to respond to
calls.[99] Thus, like the coroners in
Berry, who were required to be in areas accessible
by a pager, Varner's range was somewhat
limited.[100] For instance, Varner indicates that on
prior trips south to Seward, Alaska, or north to a
“lake out near the glacier, ” he would lose
service, miss calls, and be reprimanded by his supervisors at
Shoreside.[101] However, the Court finds that even if
Varner was limited to remaining in Anchorage, Alaska, while
he was on-call, the restriction would not be
excessive.[102] Like in Bright, if Varner had
a longer “leash, ” he may have been able to do
more things and see more places, “but that does not
mean that within the applicable restrictions he could not
effectively use the on-call time wholly for his own private
purposes.”[103] Therefore, this factor weighs against
a finding that Varner's time with the after-hours phone
was compensable.
c.
Whether the Frequency of Calls Was Unduly Restrictive
Varner
estimates that the volume of calls that he received on the
after-hours phone fluctuated from zero to ten calls per
shift.[104] Varner claims that the regular volume
of calls disrupted his life after business
hours.[105] He alleges that the frequency of calls
became so disruptive that his wife refused to share his bed
while he had the after-hours phone.[106] Varner further recalls
that the two times he attempted to attend the movie theater
while on-call he was interrupted by calls.[107]
In
Berry, the court found 3-4 calls in a 24-hour shift
restrictive.[108] There is a genuine dispute on the
record of the volume of calls received, the amount of time
Varner spent responding to calls, and whether the frequency
of calls was an undue burden on his ability to engage in
private pursuits.[109] Construing the disputed facts on the
record in favor of Varner, the Court finds that this factor
weighs in favor of a finding that Varner's time with the
after-hours phone was compensable.
d.
Whether a Fixed Time Limit for Response Was Unduly
Restrictive
In
Owens and subsequent cases that apply the
Owens factors, the response time factor has
considered the time to respond to a particular
location.[110] As discussed above, Varner only rarely
needed to respond to a particular location to respond to
calls.[111] The record does show that Varner
occasionally would respond to work sites to address
spills.[112] However, such instances were
infrequent.[113] Only four times in the last year he
was employed at Shoreside, did Varner respond to an incident
in person.[114] Further, Varner has not alleged that
he was subject to a certain response time when he had to
respond on-scene.
In
Berry, the court held that where an employee was
required to respond via telephone after receiving a page, it
“[was] not a factor prohibiting the [employee's]
personal pursuits.”[115] Varner asserts that
Shoreside company policy dictated that he answer a call
within three rings.[116] This expectation included calls
received on the after-hours phone.[117] Although this is a
shorter timeframe than the 15-minute window in
Berry, Berry-decided in 1994-considered
employees equipped with pagers who may need up to 15 minutes
to locate a telephone.[118] With the advent of mobile phones,
the process to answer a call becomes less onerous and
requires less time. The only response time limit discussed in
the record-the three-ring policy-was not unduly restrictive.
Therefore, this factor weighs against a finding that
Varner's time with the after-hours phone was compensable.
e.
Whether the On-Call Employee Could Easily Trade On-Call
Responsibilities
There
is no evidence on the record that indicates Shoreside had a
policy against trading shifts. Where there is “no
policy against trading shifts and no evidence to support a
conclusion that trading shifts is difficult, ” this
factor weighs against finding that plaintiff's on-call
time was compensable.[119] Furthermore, courts have found that
where there is evidence that an employee can trade on-call
shifts while they are injured or while a family member is
sick, this factor ought to weigh against the compensability
of on-call time.[120]
The
record shows that Varner could freely trade shifts when
requested.[121] For example, when he requested for
time off from the after-hours phone in order to attend family
events, Varner admitted that the request was never
denied.[122] Varner also admits that he was able to
have someone cover the after-hours phone while he took
vacations or took sick leave.[123] Varner describes that he
and his co-workers were able to freely trade shifts when
desired.[124] Therefore, this factor weighs against
a finding that Varner's time with the after-hours phone
was compensable.
f.
Whether the Use of a Pager Could Ease Restrictions
This
factor has become, as Shoreside notes, somewhat
anachronistic.[125] The after-hours phone at issue here is
essentially a pager and telephone in one. However, courts
discussing this factor typically consider whether employees
were required to be tethered to a location with a fixed
landline.[126] For instance, the court in
Berry found that “by being able to use a
pager, the coroners [were] not restricted to areas with a
telephone or two-way radio.”[127] Likewise, in
Owens the court noted that the purpose of a pager
was to “allay necessity of remaining by a phone”
while on-call.[128]
Here,
because the after-hours phone was a mobile phone, Varner was
not tethered to any location or required to remain by a
landline. Resultantly, Varner had greater freedom to pursue
personal activities while on-call. Therefore, this factor
weighs against a finding that Varner's time with the
after-hours phone was compensable.
g.
Whether the Employee Had Actually Engaged in Personal
Activities While On-Call
Under
this factor, courts must not look to whether an employee is
prevented from participating in certain personal activities
but, instead, must determine whether they engaged in personal
activities while on-call.[129] An employee on-call need
not “have substantially the same flexibility or freedom
as he would if not on call, else all or almost all on-call
time would be working time, a proposition that the settled
case law and the administrative guidelines clearly
reject.”[130]
In
Brigham, workers “were able to use portions of
their duty shifts to: sleep, eat, read, study, exercise,
watch television, help their children with homework, play
games, maintain their homes and yards, work on their
motorcycles, and entertain guests.”[131]
Nevertheless, because employees were tethered to their homes,
the Brigham court found that this factor narrowly
weighed in favor of the employees.[132]
The
Eighth Circuit in Cross found that employees were
required to constantly monitor all unfiltered radio
traffic.[133] As a result, they could not attend
events or participate in activities that would prevent them
from monitoring radio transmissions.[134] For
example, “they were unable to entertain guests in the
home, attend church or other social gatherings with which
audible radio transmissions would
interfere.”[135] Furthermore, the court found that
because the employees were bound by a thirty-minute response
time, “the employees are unlikely to participate in
activities that cost much money because they may be required
to immediately leave . . . .”[136]
Here,
Varner was neither bound to his home nor was he required to
listen to busy radio traffic at all times. Additionally,
Varner admits that he went out to dinner with his family
while on-call.[137] Likewise, while on-call, Varner
attended social gatherings at houses other than his own and
attended his children's birthday parties.[138] Although
he may have received a call during these times, unlike the
employees in Cross, there is no evidence that Varner
was subject to an expectation to respond on-scene within
30-minutes or any particular time at all. It is not disputed
that after-hours calls could sometimes disrupt Varner's
personal activities or that he was required to stay within
cell phone coverage while holding the after-hours
phone.[139] Although these aspects of being
on-call somewhat limited Varner's flexibility, it is
undisputed that Varner was able to-and did- engage in
personal activities while on-call. Therefore, this factor
weighs against a finding that Varner's time with the
after-hours phone was compensable.
2.
Whether There Was an Agreement Between the Parties that
Varner's Time On-Call Was Compensable
“The
Court's ‘analysis of the [on call] issue . . . does
not end' with consideration of ‘[t]he degree to
which the employees were free to engage in personal
activities . . . .'”[140] The second factor
courts must consider is “the parties' agreement and
its significance.”[141] An agreement for the
purpose of the FLSA analysis may be express “as arising
through the employees' acceptance of duty shifts with a
prior understanding of how they were to be compensated for
those shifts, ”[142] or may be constructive “as
arising from the employees' decision to continue working
under the policy.”[143]
After
establishing the existence of an agreement, courts must then
“determine whether the parties characterized the time
spent waiting on-call as actual work.”[144] In
Berry, the Ninth Circuit explained:
An agreement between the parties which provides at least some
type of compensation for on-call waiting time may suggest the
parties characterize waiting time as work. Conversely, an
agreement pursuant to which the employees are to be paid only
for time spent actually working, and not merely waiting to
work, may suggest the parties do not characterize waiting
time as work.[145]
“Whether
there was an agreement between the employer and the employees
that employees would receive compensation only for actual
work conducted while on-call is . . . a question of fact . .
. .”[146]
In
2011, when Varner began as Shoreside's dispatcher, he was
expected to hold the after-hours phone from closing-time to
when the office opened the next morning.[147] After
Shoreside hired additional personnel, the after-hours phone
rotated to other individuals every other
weekend.[148] While Varner held the phone during
this time, he was compensated by being paid two hours of
overtime per week.[149] If Varner reported that he worked more
than two hours responding to after-hours calls in a week, he
could report the additional hours and would be compensated
accordingly.[150] Varner has admitted that he was aware
of these requirements and compensation scheme and continued
to work under them.[151] Therefore, from 2011 to 2015,
Varner and Shoreside had a constructive agreement regarding
compensation for after-hours work.
On
November 15, 2015, four years after he began as a dispatcher,
Varner and Shoreside entered into the Dispatcher Compensation
Agreement.[152] This agreement responded to concerns
raised by Varner regarding the after-hours
phone.[153] The Dispatcher Compensation Agreement
provided that:
d. For each after-hours period (running from 5:00 p.m. to
8:00 a.m. the following day) the Employee is on-call,
Employee shall be paid a minimum of two hours of pay at the
overtime rate. In the event Employee works in excess of two
hours taking and responding to calls, Employee will be paid
for the actual time worked at the overtime rate. The Employee
must report all time worked during non-business hours, and
all time spent preparing the time log will be
paid.[154]
This
represents an express agreement between Shoreside and Varner
which provides for how on-call time is to be compensated.
Therefore, during the entirety of his tenure as
Shoreside's dispatcher, Varner had either a constructive
or express agreement with Shoreside.
A
similar agreement was at issue in Shultz v. City of
Tucson.[155] In that case, police detectives sued
the City of Tucson for unpaid overtime compensation for time
spent on call.[156]After applying the Owens
factors the court turned to the collective-bargaining
agreement between the parties.[157] The agreement
“implicitly recognize[d] that some on-call time is
compensable because if the detectives [were] called up for
less than two hours, they [were] automatically compensated
for a minimum of two hours.”[158] The agreement in
Shultz, like Shoreside's, paid employees a
minimum of two hours overtime for being on-call and they
would be compensated for any time in excess of two hours that
they spent responding to calls.[159] Even though the
agreement in Shultz recognized that some time spent
waiting on-call was compensable, the court found that the
balance of factors indicated that the employees were not
entitled to compensation for all hours spent
on-call.[160]
Here,
the agreement between Shoreside and Varner recognizing that
some on-call time was compensable, although a predominant
factor, is not dispositive.[161] As discussed above, six of
the seven Owens factors indicate that Varner was
able to substantially engage in personal activities while
holding the on-call phone. The agreement, which only
recognizes two hours of on-call time as compensable, does not
outweigh the facts which show that Varner's time on-call
was largely at his disposal rather than his employer's.
Therefore, after careful review of the record, the Court
finds that Varner is not entitled to overtime compensation
for each hour he held the after-hours phone. Thus, Shoreside
is entitled to summary judgment on this issue as a matter of
law.
B.
Whether Varner is Entitled to Recover for the Uncompensated
Time He Spent Actually Responding to Calls
While
Varner is not entitled to additional overtime compensation
merely for being on-call, he may be entitled to overtime pay
for the time he actually spent responding to calls in excess
of two hours. In order to prevail on this claim, Varner must
show that the uncompensated activity constitutes compensable
“work, ” that Shoreside had actual or
constructive knowledge of the plaintiffs overtime work, and
the amount of uncompensated time he actually
worked.[162] The time Varner spent responding to
customers or Shoreside employees is indisputably
“work” which satisfies the first element of an
FLSA claim. Furthermore, he also asserts that he informed his
direct supervisors of the excess time he spent responding to
after-hours calls.[163] Thus, Varner has pleaded facts to
satisfy the second element of his FLSA claim. However, Varner
has provided no evidence to indicate the amount of
uncompensated time he actually spent responding to
after-hours calls. Varner vaguely asserts that there was time
when he worked more than two hours responding to calls but
was not compensated.[164] Yet, there is no evidence on the
record that indicates the number of uncompensated hours
Varner worked.[165] The affidavit provided by Varner
documents the time he spent holding the after-hours phone but
does nothing to elucidate the number of hours spent
responding to calls.[166] Because Varner has failed to bear
his burden of production on the third element of his FLSA
claim, Shoreside is entitled to summary judgment on this
issue as well.
Accordingly,
Shoreside's Motion for Summary Judgment is
GRANTED as to Varner's claims brought
under the FLSA.
V.
CONCLUSION
For the
foregoing reasons, Shoreside's Motion for Summary
Judgment filed at docket 15 is GRANTED. The
Clerk is directed to issue a form of Judgment accordingly.
IT IS
SO ORDERED.
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Notes:
[1] Dkt. 15 (Motion).
[2] Dkt. 16 at 1-2 (Memorandum in
Support).
[3] Dkts. 15, 19 (Response), and 22
(Reply).