Summary
concluding that the question of whether the sleep period at issue is "regularly scheduled" and "bona fide" should be submitted to a jury
Summary of this case from Kinkead v. Humana at Home, Inc.Opinion
Civil Action No: EP-99-CA-361-EP.
February 15, 2001
ORDER
On this date the Court considered the Defendants' motion for summary judgment and the Plaintiffs' response and counter-motion for summary judgment. After careful consideration, the Court will deny both motions.
FACTS
Plaintiffs are present and former Emergency Medical Technicians (EMTs) with Defendant Life Ambulance Service, Inc. Plaintiffs complain that Life Ambulance Services violated the Fair Labor Standards Act by designating twenty-three hours of a twenty-four hour shift as a "sleeping period." Plaintiffs worked the first hour of the shift on the clock, but the following twenty-three hours were designated a "sleep period," during which the Plaintiffs were on call and allegedly performed other ministerial duties. At the end of each shift, the Defendant checked the Plaintiffs daily log to determine whether there had been a five-hour period in which the Plaintiff had not been asked to respond to emergency calls. If there had been, the Defendant deducted up to eight hours "sleep" time from the Plaintiffs wages, regardless of what hours that period had covered or whether the Plaintiff had actually had a meaningful opportunity to sleep. If there had not been a five-hour period of "down time," no time was docked. The Plaintiffs claim this practice violated FLSA regulations, which require that an exempted sleep period be regularly scheduled and provide the employee with an opportunity for an "uninterrupted nights' sleep." The Defendants claim that the Plaintiffs acquiesced to the policy and that the policy does not violate federal standards.
SUMMARY JUDGMENT STANDARD
In the usual case, the party who seeks summary judgment must show by affidavit or other evidentiary materials that there is no genuine dispute as to any fact material to resolution of the motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986); Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. See Celotex Corp., 477 U.S. at 325; Lavespere, 910 F.2d at 178.
Once the moving party has carried that burden, the burden shifts to the nonmoving party to show that summary judgment is not appropriate. The nonmoving party cannot discharge this burden by referring to the mere allegations or denials of the nonmoving party's pleadings; rather, that party must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324. In order for a court to find there are no genuine material factual issues, the court must be satisfied that no reasonable trier of fact could have found for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Liberty Lobby, 477 U.S. at 249-50; FED. R. Civ. P. 56(e).
Where the party opposing the motion for summary judgment will have the burden of proof on an essential element of his case at trial and does not, after adequate time for discovery, make a showing sufficient to establish the existence of that element, summary judgment may be entered against him. Celotex, 477 U.S. at 322-24; Fontenot, 780 F.2d at 1194-95.
DISCUSSION
The Fair Labor Standards Act (FLSA) presumes that an employee working a full twenty-four hour shift will be paid for the entire shift. According to the regulations interpreting the FLSA, however, employers and employees may make an agreement to the contrary:
Where an employee is required to be on duty for 24 hours or more, the employer and employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. If the sleeping period is of more than eight hours, only 8 hours will be credited. Where no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked.29 C.F.R. § 785.22(a) (1998). The employer bears the burden of proving that it is entitled to the exemption. Roy v. County of Lexington, 141 F.3d 533, 543-44 (4th Cir. 1998).
This Court must give substantial deference to an agency's permissible interpretation of a statute where Congress delegated to that agency the authority to engage in statutory interpretation. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45 (1984); Dufrene v. Browning-Ferris, Inc., 207 F.3d 264, 267 (5th Cir. 2000). While Congress has not spoken directly on the precise question here, it did delegate to the Secretary of Labor the power to administer the FLSA, including the power to interpret it. See Dufrene, 207 F.3d at 267-68. Thus, this Court will defer to the regulation, provided it is a permissible interpretation of the statute. The sticking point here, however, is not deference, but interpretation. See Shannon v. Pleasant Valley Community Living Arrangements, Inc., 82 F. Supp.2d 426, 429-30 (W.D. Pa. 2000) (finding no basis for concluding that agency interpretation was unfaithful to legislative mandate).
The Defendant makes several arguments regarding its practice of establishing a 23-hour sleep period. First, it contends that nothing in the law mandates that it set aside a specific period for sleep. Second, it contends that the statute clearly anticipates that a designated sleep period may last for more than eight hours. Finally, the Defendant contends that the bottom-line inquiry under the regulation is whether the employer deducted more than eight hours from the twenty-four hour shift.
Bona Fide, Regularly Scheduled Sleep Period
The first claim is easily disposed of. The plain language of this regulation belies any suggestion that a "regularly scheduled" period of sleep is not required. In fact, that is exactly what the regulation requires. Moreover, the regulation contemplates that the sleeping period will be "bona fide." As the Defendant points out, the regulation does not define "bona fide" in connection with a sleeping period. However, it does set forth what it means by a bona fide meal period. A bona fide meal period, the regulations state, is a period that is not worktime; in other words, it is a period in which the employee is completely relieved of duties for the purpose of eating regular meals. See 29 C.F.R. § 785.19. In addition, Black's Legal Dictionary provides a definition for "bona fide:" "In or with good faith; honestly, openly, and sincerely; without deceit or fraud. Truly; actually; without simulation or pretense . . . Real, actual, genuine, and not feigned." The regulation, by its express terms, anticipates that a regularly scheduled period of time that, at the very least, the employer and employee intend, in good faith to be used for sleep, may be deducted from the employee's wages. The Court sees absolutely no basis for concluding that the period does not need to be regularly scheduled or bona fide.
The Plaintiffs argue that the sleep period at issue here is neither regularly scheduled nor bona fide. The Court believes this question should be submitted to a jury. There is evidence to support a finding that, rather than attempting to provide its employees with an "uninterrupted night's sleep, " as the regulation requires, the Defendant was merely combing employee time records in order to find a period of time that would permit it to deduct hours. The Defendant's argument that its loose interpretation of "regularly scheduled" — ie., a twenty-three hour period for sleep — actually benefitted those employees who worked back-to-back 24-hour shifts and did not get sleep in the first shift is an argument that certainly may be made to a jury. However, it does not dispose of the Plaintiffs' claims as a matter of law. The Plaintiffs in this case contend that the Defendant was not concerned about whether it was providing a bona fide period of sleep time for its employees but only that there were five hours of down time (time without emergency calls). See Deposition of Miguel Angel De La Cruz, at 52 ("downtime" was used to clean, do general housekeeping, in addition to private activities); Deposition of Luis Salazar, at 16 (management informed employees of routine deduction of sleep hours); Deposition of Gerardo Cailing, at 54 (downtime hours deducted regardless of time of day or whether employee had meaningful opportunity to sleep); Deposition of Francisco Rene Sanchez, at 39 (supervisors refused to pay for time performing household duties when that time fell in "downtime" that Defendant designated as "sleep time"). Thus, according to these Plaintiffs, time spent doing ministerial duties might actually be counted as "downtime, " that could be used to exclude sleep hours, even though the time was spent working. The Plaintiffs also claim that the system of deducting hours after the fact sometimes operated to prevent sleep — if, for example, five hours without a call passed at the beginning of a shift, an employee might not sleep because of the earliness of the day or other ministerial matters. By evening, then, the "regularly scheduled sleep period" might already have been deducted and, if calls came in frequently, another opportunity for sleep might not present itself.
Defendants rely heavily on the only published case that addresses the issues raised here. In Trocheck v. Pellin Emer. Medical Service, Inc., 61 F. Supp.2d 685 (N.D. Ohio 1999), an Ohio district court rejected the claim that 785.22 requires that a period of no more than eight hours be set aside for sleep. Trocheck, 61 F. Supp.2d at 696. This Court, as noted below, agrees with that conclusion. However, the Court notes that the court in Trocheck explicitly acknowledged that an excessively long sleep period might raise a question regarding whether the sleep period is bona fide: "The response [to the argument that, under Trocheck, an employer could set aside a 24-hour shift as a sleeping period is that] the regulation requires that the regularly scheduled sleeping period must be `bona fide.'" Id. at 697. This Court rejects any suggestion in Trocheck's dicta that merely because an employer deducts no more than eight hours, the sleep period is automatically bona fide. See id.
While the question here is close, the Court concludes that, based on the evidence submitted thus far, a jury might conclude that the pay structure implemented here was not designed to provide a bona fide regularly scheduled sleep period.
No More Than Eight Hours
The second of the Defendants' contentions, that the bona fide sleep period can be more than eight hours, is somewhat thornier. Clearly, the regulation suggests both that the regularly scheduled period must not be longer than eight hours and that it may be longer than eight hours. The regulation states both that the employer and employee may agree to exclude a period of "not more than 8 hours" and that "if the sleeping period is of more than 8 hours," only eight hours may be excluded. The Plaintiffs argue that, in order to give full meaning to both sentences, the Court must find that the second "sleeping period" mentioned refers to the time that the employee actually spends sleeping. The Defendant argues that a designated sleeping period may be more than eight hours, so long as no more than eight hours are excluded from the employee's pay. In other words, according to the Defendant, the only question to be asked is whether more than eight hours were deducted.
The proper construction to be given a statute or regulation is a question for the Court. See Summers v. Gober, 225 F.3d 1293, 1295 (Fed. Cir. 2000). Thus, the Court rejects the Plaintiffs' contention that, because opposing experts disagree on what meaning to give this regulation, the question must go to the jury. The Court also rejects the Plaintiffs' argument that the regulation limits the designated sleeping period to eight hours. See Trocheck, 61 F. Supp.2d at 697. It is more reasonable to assume that the "sleeping period" mentioned in the second sentence is the same "sleeping period" mentioned in the first sentence; repetition of phrases from one sentence to the next is a common transitional device. Had the drafters intended to refer to the time actually spent sleeping in the second sentence, it would have been easy enough for them to say so. Accordingly, the Court finds that resolution of this case cannot turn on whether the designated period is more than eight hours; rather, as noted above, the question for the jury will be whether, given the length of the time period and other factors to be developed at trial, the sleep period here is a "bona fide regularly scheduled" period. Thus, while the Court finds that a sleep period need not be limited to eight hours, the Court disagrees that the only dispositive question is whether more than eight hours were ultimately deducted.
Agreement
The Defendant claims that the Plaintiffs agreed to an eight-hour deduction and therefore may not complain of it here. Initially, the Court notes that, because there is a fact question regarding whether the "sleep period" at issue here is bona fide and regularly scheduled, this Court cannot find, as a matter of law, that an agreement ratified the arrangement. By plain and explicit language, the regulation contemplates that the agreement must be an agreement to set aside a bona fide, regularly scheduled period for sleep. See Trocheck, 61 F. Supp.2d at 694 (where court found existence of agreement, it was still required to determine whether agreement complied with ELSA); Lowe v. Bell House, Inc., 328 S.E.2d 301, 304 (N.C.App. 1985) (agreement is only one of several factors to consider); see also General Electric Co. v. Porter, 208 F.2d 805, 813 (9th Cir. 1953) (parties cannot agree to terms that contravene FLSA);
This view is further bolstered by comparing 29 C.F.R. § 785.22 to 29 C.F.R. § 785.23, the regulation governing residential employees. That provision requires only an agreement that is reasonable and "takes into consideration all of the pertinent facts." Clearly, if the drafters had intended employers and employees such as the Defendants and the Plaintiffs to be governed under these looser standards, they could have said so.
There is no explicit agreement here. The direct evidence of an agreement pointed to by Defendant is a handout that it sent home with employees in their paychecks. That announcement did not seek, or provide for, employee acquiescence.
In addition, the Court finds that, at least for some of the Plaintiffs, there is a fact question regarding whether an implicit agreement existed here. While continued employment and acceptance of salary can be evidence of an implicit agreement, see Bodie v. City of Columbia, 934 F.2d 561, 568 (4th Cir. 1991), an implied agreement cannot exist if the employee asserts "reasonably contemporaneous verbal objections or protests to the employer's actions." Johnson v. City of Columbia, 949 F.2d 127 (4th Cir. 1991); Burgess v. Catawba Co., 805 F. Supp. 341, 345 (W.D.N.C. 1992). There is evidence in the record that some of these Plaintiffs were not informed of the pay policy and did complain and ask questions regarding the policy. See Deposition of Rafael Navarette, at 12 (not informed of policy), 38 (did not understand information sheet in paycheck); Deposition of Miguel Angel De La Cruz, at 13 (never saw information sheet), 20 (sought explanation about pay deductions from management), 25 (complaints to union and management); Deposition of Ralph Edward Juarez, at 23 (complained to management about sleep deductions); Deposition of Francisco Rene Sanchez, at 13 (no information provided about deductions), 37 (complaints about deductions). Whether these objections were sufficient to preclude a finding of an agreement is for a jury to decide.
In sum, two questions remain regarding any alleged agreement between these parties. The first is whether an agreement existed at all. The second is whether, if such an agreement existed, it can serve to ratify conduct that a jury might conclude violates the FLSA. Accordingly, the case cannot be dismissed on the ground that the parties entered an express or implied agreement.
Plaintiff Luis Salazar testified in deposition that he did not make contemporaneous complaints to the pay policy. If a jury should conclude that the deductions were bona fide, Salazar would not be entitled to a jury question on whether there was an agreement, because there is no evidence that he did not implicitly agreed to the deductions. Similarly, there is no evidence in this record that Plaintiffs Gerardo Cailing and Daniel Portillo made contemporaneous complaints.
CONCLUSION
ACCORDINGLY, it is ORDERED that the Defendant's motion for summary judgment is GRANTED, IN PART, such that should a jury conclude that the pay arrangement at issue here complies with the FLSA, Plaintiffs Luis Salazar, Gerardo Cailing and Daniel Portillo may not complain that they did not agree to the arrangement. The motion is DENIED on all other grounds. The Plaintiffs' motion for summary judgment is DENIED.