Opinion
Civ. No. 98-2446 (RLE).
March 30, 2000.
FINDINGS OF FACT CONCLUSIONS OF LAW and ORDER FOR JUDGMENT
I. Introduction
This matter came before the undersigned United States Magistrate Judge pursuant to the consent of the parties, as authorized by Title 28 U.S.C. § 636 (c). This is a civil action, that was commenced pursuant to the provisions of the Federal Fair Labor Standards Act ("FSLA"), Title 29 U.S.C. § 201 et seq., and Minnesota Statutes Sections 177.24 and 177.25, for damages which purportedly resulted from the failure of Defendant First Care Medical Services ("First Care") to pay its "on-call" Ambulance Service employees wages for time spent when, assertedly, they were "engaged to wait."
With one modification, the issues before us have been aptly framed, as follows, in the Plaintiffs' proposed Findings of Fact and Conclusions of Law:
The parties stipulated and the Court so ordered, to bifurcate certain issues in this case. Specifically, the limited issues presented to the Court were:
1. Whether Employees were "engaged to wait" or "waiting to be engaged" while working primary and secondary shifts.
2. Whether Defendant's violations were "willful," thus entitling Employees to a third year of unpaid wages.
The remaining issues in this case, including but not limited to, damage calculations, liquidated damages, interest, costs and attorney fees are reserved for future consideration.Plaintiffs' Proposed Findinas of Fact and Conclusions of Law, at p. 1.
Should there be some suggestion, that the "but not limited to" proviso envisions the parties reappearance before the Court,seriatim, with new theories of liability, or with new defenses to liability, we expressly reject the notion. What would remain for decision, if liability were found, is a computation of the damages, liquidated damages, attorneys' fees, and related costs and disbursements, that would then be owing to the Plaintiffs. Since we find no liability on First Care's part, with the entry of Judgment to that effect, this matter is at a conclusion.
The Court Trial of this action commenced on June 14, and continued through June 16, 1999, when, after the submission of written closing summations on July 2, 1999, the matter was taken under advisement. The Plaintiffs have appeared by Jeff A Bredahl, and Duane R. Briethng, Esqs., and First Care has appeared by Richard. A. Beens, Esq.
Based upon the entirety of the Record before us, the files, records, and argument of counsel, and being fully advised in the premises, we now make our Findings of Fact, and Conclusions of Law, as follows:
II. Findings of Fact
1. The Plaintiffs are former employees of First Care, where they were employed as paramedics, or emergency medical technicians ("EMT's"). They commenced this action on October 19, 1998, see Notice of Removal [Docket No. 1], and they claim overtime pay, owing to their on-call status, during the period from October 19, 1995, to the date that they were last employed by First Care, First Care's denial of overtime was a willful violation of the pertinent Federal and State Statutes, or from October 19, 1996, if the denial was wrongful, but not willful. See, Title 29 U.S.C. § 255 , and Minnesota Statutes Section 541.07(5).
2. First Care is a Minnesota corporation which operates a hospital, an ambulance service, a clinic, and a number of nursing home, hospice, and home health care facilities. First Care has is principal place of business in Fosston, Minnesota. In total, First Care has a workforce of approximately 200 to 220 employees, and has gross revenues of $9,000,000. The ambulance service, which is the focus of the Plaintiffs' lawsuit, comprises about 3 percent o: First Care's total budget. The ambulance service operates out o: Fosston, and encompasses a rural Primary Service Area ("PSA") of approximately 7,810 permanent residents. See,Plaintiffs' Exhibit 30, at Bates No. 101538. Fosston is at the heart of the PSA and has, itself, a population of approximately 1,500 residents.
3. Prior to First Care's ownership, the ambulance service had fallen into financial difficulties, in 1990, when it was a privately owned, for-profit business. On August 9, 1990, representatives of the Minnesota Department of Health inquired whether First Care had any interest in assuming the license of that service which, otherwise, would be forfeited to the State of Minnesota on August 13. David S. Hubbard ("Hubbard"), who was then the Chief Executive Officer of First Care, contacted First Care's Board of Directors, who expressed interest in operating the ambulance service. Given First Care's expression of interest, the State a: Minnesota granted it a temporary license to operate the ambulance service for a period not to exceed one year. See,Defendant's Exhibit 27.
4. At the time that First Care assumed responsibility for the, ambulance service, the service had four persons on call at all times — two employees on the primary call, and two on the secondary call. "Those on primary call received $54.00 per day and those on secondary call received $10.00 per day (unless they were called, at which time their pay was increased to $54.00)."Id. Collette Fish ("Fish"), who was then First Care's Human Resources Director, contacted the Minnesota Department of Labor and Industry, Labor Standards Division, on August 10, 1990, and explained the circumstances of the ambulance service, as well as First Care's intent to pay the four employees, who were previously employed by the predecessor service and who agreed to transfer to First Care's employ, the same as they had previously been paid. Id. Fish was referred to the Federal Wage and Hour Division. As related in Fish's contemporaneous notations:
I explained our situation to [Ann] and our desire to pay the staff for a 24-hour call period. We discussed what amount of work and hours would be involved and I gave her the run volumes from the previous operator (average 32/month). Her initial reaction was that we would be spending too much money and suggested we reduce the amount of call pay and just pay actual working time. I told her we would evaluate the pay structure if we got a permanent license, but for now we wanted to make this a smooth transition. She stated that she saw no problems with that pay structure, but suggested we track actual worked time.Id.
This evidence is uncontroverted, as is the fact that, thereafter, First Care did not undertake any governmental assessment of the pay structure for the ambulance service employees, although Fish was generally familiar with overtime issues, and with exempt and nonexempt employee status, but had taken no specific courses on "on-call" issues.
5. On April 14, 1991, First Care received a permanent Basic Life Support ("BLS") license from the State of Minnesota. At that time, Fish undertook to integrate the ambulance service employees into the pay structure of First Care's other employees. First Care had other employees who were on-call, including the nursing staff, the radiologists, laboratory, home health, and emergency room personnel, but only the ambulance service employees had no obligation to report to work until called to do so. The other on-call employees worked a full eight-hour shift, and then assumed on-call status for the "remainder of the day." Nonetheless, in order to afford the ambulance service personnel equivalent employee benefits on an hourly basis, Fish undertook an assessment of the competing pay scales. The ambulance service personnel, both full-time and part-time, were entitled to the same employee benefits — such as paid time off, extended disability, health insurance, disability insurance, pension and deferred annuity — as First Care's other employees. As recounted by Fish, without contradiction, she surveyed the comparable services in the region which, routinely, employed a volunteer workforce, with substantially reduced pay and benefits, and she attempted to establish equity between the ambulance employees, and First Care's other health care professionals. According to Fish, on an annual basis, First. Care reviews the local and regional entities in order to assure that its wages and pay are generally comparable.
6. Fish explained that, since First Care had experienced some difficulty in securing its initial ambulance staff, she made a conscious effort to ensure an available staff for the future. She testified, without discrepancy, that paying the ambulance workers for actual work would deprive the ambulance staff of a reliable wage for the employees' own budgeting purposes. In addition, since the accrual of employee benefits was based upon the hours worked — that is, the greater the hours worked, the greater the accrual of benefits — the ambulance attendants' "work day" had to be comparable to the work days of First Care's other employees. The conversion factor which developed, translated the ambulance employees' twenty-four hour shift into the equivalent, for employee benefit purposes, of the other employees' eight-hour shift. The Plaintiffs characterize the conversion factor as allowing them to be paid for one of every three hours of the twenty-four hour shift. The Record reflects that both the paramedics, and the EMT's on First Care's staff received annual wage increases. See, Defendant's Exhibits 24 and 25. By October of 1998, paramedics received up to $126.96 for each 24-hour on-call shift, while EMT's were paid up to $73.92 per shift, depending upon their training and experience. Id. The differential in pay is attributable to the fact that paramedics, as a rule, have greater training and expertise than EMT's.
7. Hubbard testified, without dispute, that, in its first years, the ambulance service "covered" just its direct expenses, but was not contributing to the hospital's overhead. In July of 1994, First Care received a permanent Advanced Life Support ("ALS") license. The ALS license required the employment of paramedics, as well as EMT's, and allowed for the performance of more advanced health care techniques, such as the monitoring of cardiac rhythms, the performance of endotracheal intubations, the defibrillation of patients, and the initiation of intravenous fluids. See, Plaintiff's Exhibit 39. With the advent of the ALS licensure, First Care was able to expand the services which it could provide to its PSA, and to the surrounding area, by the acceptance of Mutual Aid Agreements. These agreements allowed for the exchange of ambulance support services, by providers in the area, on a mutual basis as the need should arise. If one area ambulance provider, who entered such an Agreement, needed assistance — due to the mechanical breakdown of an ambulance, a transient overburdening of a particular ambulance service, or some other emergency — then the Mutual Aid Agreement would allow for the provision of a substitute ambulance service. See, Plaintiffs' Exhibits 11 through 24. During the 1990's, First Care entered such Mutual Aid Agreements, for BLS or ALS services as appropriate, with Nay-Tah-Waush Ambulance, Red Lake Falls Ambulance, Oklee Ambulance, Mahnomen County Ambulance, Clearwater County Ambulance, Polk County Ambulance, County EMS Ambulance, and Bemidji Ambulance, Services. Id.
8. In addition, First Care contracted with the Polk County Board of Commissioners, in the years from 1995 through 1998, to provide emergency medical services for designated portions of Polk County, which generated income to First Care, in the amounts to $46,800, $45,600, $45,600, and $42,600, for each of the respective years. See, Plaintiffs' Exhibits 25 through 28. These contracts obligated First Care as follows:
The Contractor [i.e., First Care] shall provide at least state-of-the-art basic life support-level emergency medical care response and transportation services, meeting the County's EMS standards, on a 24-hours per day, seven-days-per-week basis. The Contractor shall assure that at least two fully-equipped and staffed ambulance units are operationally available at all times for emergency medical responses within the Service Area, including ambulance units actually committed to an emergency response.Id. at pages 1-2.
9. As noted, First Care's ambulance staff started with four employees, and expanded with the broadening of its expertise — as reflected in its ALS licensure — and of its obligation to service, or assist, areas outside of First Care's PSA. At all times pertnent to the Plaintiffs' claims, First Care, maintained six EMT's, and six paramedics, who were subcategorized according to whether they were employed full-time, part-time, or in a relief capacity. The members of the ambulance staff were assigned shifts designated as first, second or, on occasion, third call. A shift lasted for twenty-four hours, beginning and ending at 7:00 o'clock a.m. Pursuant to First Care's ALS license, first and second calls were staffed with one paramedic, and one EMT. Each full-time employee was required to work ten first call, and ten second call shifts, in a given month. As a result, full-time employees were on 24-hour call for twenty days a month. Part-time employees served eight or more 24-hour shifts a month. While, occasionally, an ambulance employee might be scheduled to serve a first call shift, followed by a second call shift, the employee was not routinely scheduled to serve successive first call shifts and, with regularity, the first call shifts of any given employee were separated by several off-duty shifts.
10. The transition of First Care, from a BLS to an ALS license, as well as First Care's marketing of the benefits of its ambulance service, resulted in a gradually evolving expansion of the duties that the ambulance attendants were required to perform. By way of examples, the paramedics would train the hospital staff, five times a year, on Cardiopulmonary Resuscitation; they would conduct prenatal classes five time a year; they would perform vaccinations on hospital personnel two times a year; they would conduct adult community medical classes five or six times a year; they would conduct Boy Scout education, gun safety classes, and basic first aid, on occasion; and they would train First Responders on automatic defibrillation, and on other topics of interest to them. Ambulance attendants also performed standby service at High School football games, at snowmobile races, at a local rodeo, and at an annual fireworks display. The first shift paramedics would also provide assistance at the hospital's emergency room, from 4:00 to 8:00 o'clock p.m. on Saturdays, and Sundays, in order that the paramedics could remain current on state-of-the-art medical practices and procedures. These assignments would randomly rotate amongst the paramedics and, when an ambulance was employed, the assignment would be registered as an ambulance run for license renewal purposes. Ambulance personnel would also be responsible for cleaning the ambulances after each run; for completing paperwork and assisting the admission of the injured persons who were taken by ambulance to the hospital; for aiding the emergency room staff by delivering a patient to the x-ray department, to the laboratory, or in administering certain intravenous medications; for cleaning the garage and personal quarters each Friday; and for performing equipment checks and narcotics checks. The Plaintiffs emphasize that, when these activities were performed on their first or second shift, they were not compensated over and above their flat rate, on-call shift pay.
11. While the Plaintiffs testified to the extensive duties that they have been called upon to perform and the length of time that was consumed by those duties, none of the past, or present, employees of First Care was called upon to describe a typical first or second shift. Accordingly, we look to the Record as a whole to inform us in that respect. As noted, First Care would have to tally its ambulance runs as a part of its annual license renewal. In totaling the ambulance runs for the years 1995 through 1998 inclusive — that is, the years that are relevant to the Plaintiffs' claims — the yearly average totals 550 runs. As underscored by First Care, the total number of runs would include most, if not all, of the additional duties that the Plaintiffs' witnesses have recited, as a run is recorded on each occasion that an ambulance leaves the ambulance garage. Each of the Plaintiffs was asked, and each agreed, that approximately 80 percent of the runs were on first shift, and the remaining 20 percent were on second. Applying that percentage to the total average runs reflects that, on average, 440 runs are attributable to first shift, and 110 runs relate to the second shift. Since the ambulance service has 365 shifts per year, the average number of runs on first call would be 1.2 (440 ÷ 365 = 1.2), and the average number of runs on second call would be .3 (110 ÷ 365 = .3). While caution must be used in dealing with averages, in the absence of some other competent recounting, the Record before us reliably reflects that, based on the number of ambulance runs, the Plaintiffs did not experience an overly taxing number of call-outs during either first or second call. Similarly, the same figure demonstrates that, in contrast to the "32 [calls]/month" that Fish had reported to the Federal Agency in 1990, approximately 45 ambulance calls, on the average, were being experienced by First Care, per month, in 1995 through 1998. Although the Plaintiffs underscore the increase in additional runs, we cannot responsibly overlook the fact that only four employees were responsible for the calls in 1990, while twelve employees, who were being paid at a higher scale of pay, were answerable to the call outs in 1995 through 1998.
12. First Care's on-call policy required employees on the first call shift to stay within five minutes traveling time to the First Care's ambulance garage. They were also obliged to arrive for any call in a sober condition, and they were to remain call-ready in their work uniforms, which consisted of a white button down, or polo shirt, navy blue pants, black shoes, and a name tag. See, Defendant's Exhibit 4.
13. Employees serving on second call were required to remain within fifteen minutes of a location that would be within five minutes of First Care's ambulance garage. In the event that the first call team responded to a call, the second call employees were then required to move to a position within the five minute response zone that was required of first call employees. Second call employees were also required to be properly attired, although the requirement was relaxed from that imposed upon the first call employees. Second call employees were required to wear company-issued uniform shirts, but they had the option of wearing black jeans, rather than navy blue uniform pants. As was the case with first call employees, second call team members were required to wear black shoes and a name tag. Id. Upon the dispatch of the first call team, and assuming that the second call did not also respond, the second call team went into a "heightened status" in which they were required to change into the uniform of first call employees, and locate themselves within 15 minutes of a location that would be five minutes distant from the ambulance garage. Id.
14. When scheduled, third call teams were permitted to wear what they pleased, with the exception that they had to arrive for duty wearing a name tag, and they were under no particular response time. Id.
15. The Record is clear that all concerned, both the management and employees of the ambulance service, were interested in complying with the first call response time and, if possible, in safely reducing that time. Nevertheless, there is no evidence that a failure to abide by the response time resulted in any discipline to any employee, or that a record of the time, in which any employee responded to a dispatch on first call, was dutifully maintained. Indeed, our review of the Record fails to disclose any such documentation.
16. At all relevant times, the ambulance employees were alerted to a call for their services by a hand-held radio, or by a pager. Most of the ambulance attendants were provided with both, a pager and a radio, in order to provide back-up to the other alerting equipment, but some employees only had one or the other. The radio had eight channels, and three toggle settings, which would allow the operator to set the radio on "page," or in a scanning mode. While a substantial dispute arose concerning the routine setting of the toggle switch — either on page, or on scanning — there is no dispute that the page mode allowed the operator to hear a page to that operator, which was preceded by a distinctive beeping sound that would denote an ambulance call, while the scanner mode allowed the operator to scan the eight channels of the radio and lock in on any communication being made on those channels — but only one communication could be heard at a time.
17. The process by which on-call employees were notified that they were to respond to an ambulance call was not seriously in dispute. Calls were initiated by means of a 911 call to the Polk County Sheriff's Department, which would record the pertinent information, and then transmit a dispatch to the ambulance attendants which, as noted, would be preceded by the distinctive beeping tone. The tone would then be followed by a voice message transmission which would instruct the employees as to the nature and details of the emergency situation.
18. Following notification of the first call team — or both the first and second call teams, if the circumstances of the emergency required more than one ambulance to respond — the employees would "answer up," by notifying the Polk County dispatcher that they had received the call, and were enroute to the scene. Testimony at Trial conflicted as to several aspects of the "answering up" procedure, although it is unchallenged that employees were expected to do so promptly, even though no written policy specifically addressed the matter. The controversy over the process revolves around whether the on-call employees were required to use their hand-held. radios, and immediately respond to the call, or whether they were permitted to wait, and "answer up," after they had arrived at the ambulance garage.
19. James H. Aagenes ("Aagenes"), who was a co-manager of the ambulance service at all relevant times, testified that it was his practice to wait until he had reached the ambulance garage, within the five-minute response time, to "answer up." He justified this practice by relating that, due to the relative weakness of the hand-held radio signal, it was much more likely that the "answer up" call would be received by Polk County dispatcher if it was transmitted from the base or ambulance radio. As Aagenes explained, and several Plaintiffs confirmed, there were problems with relying on the hand-helds to communicate with the Polk County dispatcher, or with each other, due to the remoteness of the transmission tower. By using the ambulance radio, which operated at 100 watts, as opposed to the 45 watts of the hand-helds, communication with the Polk County dispatcher would be virtually assured by ploying his procedure. The Plaintiffs testified, however, that answering up "immediately" permitted the second shift to know whether both of the first call team members had received the page and, if not, whether one of the second call employees would have to respond. The resolution of this dispute is not particularly material to our ultimate decision, as the time involved, between "answering up" on the hand-held, or at the garage, would not have exceeded the allowable five-minute response time. On this Record., we find that the practice of answering up, whether by hand-held radio, or by the base or ambulance radio, was largely a matter of personal preference.
20. A far more critical conflict in the testimony, at Trial, was presented by the Plaintiffs' uniform contention that, in monitoring their hand-held radios, they followed the instruction of those who trained them, to leave the radio in the scanner mode in order that all pertinent communications, on a variety of chan-nels, could be canvassed. As related by the Plaintiffs, the scan-ning mode allowed the listener to receive advance notice of a need for ambulance services, whether because of a fire, a suicide, motor vehicle accidents, domestic fights, natural disasters, mass casualty accidents, and non-emergency calls, such as missing person reports. According to Francis L. Carlson ("Carlson"), who served as Aagenes' co-manager of the ambulance sevice, and Plaintiff Kimberly Ann Sletten ("Sletten"), the interval between communications, on the scanner mode, was approximately five minutes. At this rate, over the course of a twenty-four hour shift, the radio operator would hear 288 communications. As to some of these, a "Voice Guard" would be employed in order to scramble the transmission of identifying information, which would produce a loud, annoying static sound for the listener. According to Carlson, the annoyance of "Voice Guard" was a frequent occurrence in the scanner mode.
21. Although testifying that he predominantly maintained his hand-held in the scanner mode, and taught the other ambulance personnel to do the same, Carlson acknowledged that there were no written policies that required the scanner mode to be employed, and that, to his knowledge, no one was disciplined for failing to employ the scanner mode. He also acknowledged that, when he went to sleep, he would toggle his radio to the pager setting, since there was no reason to interrupt his sleep for anything other than actual pages to which he had to respond.
22. Carlson's testimony, as to his use of the scanner mode, was consistent with that of the other Plaintiffs, but was directly in conflict with the testimony of Aagenes, who was first employed by First Care in 1990, as a manager of the ambulance service, and who has remained in that employ ever since, with the exception of having to return to school in order to upgrade his paramedic training and certification. For his part, Aagenes testified that he typically used the pager mode on his hand-held, as that was the mode on which he would receive his calls from the Polk County dispatcher and, after a page, he would then toggle to the second position, so that he could monitor whether the first call team was responding to the page. Indeed, Aagenes testified that, having heard the testimony of the Plaintiffs, some of whom were uncertain whether he had instructed them on employing the scanner mode, he was surprised at the variation in the employees' use of the pager, and the scanner mode. Aagenes expressed doubt as to why any ambulance attendant would leave his, or her, hand-held in the scanner mode while sleeping, as some of the Plaintiffs had stated.
23. As noted, each of the Plaintiffs was employed with the ambulance service at First Care. The Plaintiff Kevin D. Abrahamson. ("Abrahamson") was hired as a temporary relief EMT on March 31, 1997, and he worked in that position until May 15, 1998, when left the area to become a school administrator for the St. Louis County School System. During his tenure with First Care, Abrahamson also worked as a volunteer First Responder, for the McIntosh Fire and Rescue Department, during the period from 1991 through June of 1998, and he also was employed as a teacher. In addition, Abrahamson held other jobs when in First Care's employ, including an involvement in a catering business when he was on second call. From January of 1994, until March of 1997, Abrahamson served on First Care's Board of Directors, a position from which he eventually resigned in order to become a temporary EMT. Not withstanding his service on the Board of Directors, and First Care's Personnel Committee, Abrahamson reported no complaints concerning overtime pay for ambulance employees, and he could recall no occasion when the Board expressed any intent to deprive the ambulance attendants of honestly earned wages. According to the Record before us, Abrahamson experienced a total of 1010 first call hours, in an on-call status, of which he actually worked 189 hours. He also experienced 1188.5 second call hours, in an on-call status, of which he actually worked 58.5 hours. See, Defendant's Exhibit 23.
We are mindful of Abrahamson's recounting of his exchange with Hubbard, during which he questioned the capacity of EMT's to "make a living" on $60.00 per shift, and of Hubbard's response that Abrahamson should not be concerned because the EMT's could have other jobs. Given the fact, that four of the five Plaintiffs held second jobs during their employment with First Care, it appears that Hubbard's response was an accurate recitation of the opportunities for supplemental employment, which were available to First Care's on-call employees. More importantly, within a relatively brief time thereafter, Abrahamson accepted employment with First Care, apparently at a higher rate of pay than $60.00 per hour.
24. Carlson worked for First Care from June 27, 1995, thorough June 1, 1998. He was originally hired as a relief EMT, and was later promoted to the position of a part-time paramedic, on September 19, 1995. Subsequently, on October 7, 1995, he was promoted to the position of a full-time paramedic. In October of 1996, Carlson became First Care's Emergency Medical Services Personnel Manager, and Education Coordinator. As noted, in this capacity, he shared managerial duties, over the ambulance service, with Aagenes. Carlson continued to serve as a full-time paramedic, and he alternated his duties in that position. with his managerial responsibilities. Generally, in a two-week pay period, Carlson worked seven days as the manager of the ambulance department and, as part of the same seven days, he also served. as an on-call, second shift paramedic, and for an additional three days, he served as a first call paramedic — for a total of 10 days of work during the typical fourteen-day pay period. See, Defendant's Exhibit 5. His management duties included establishing policies in conjunction with Aagenes and Devra Carlson, who served as the Director of Nursing at the hospital. During his testimony, Carlson recounted no complaints about First Care's overtime policy, concerning its ambulance workers, nor was there any report of First Care's grievance policy being employed to air a dispute over the compensation of an ambulance attendant. See, Defendant's Exhibit 5, at Bates No. 101250. While employed at First Care in 1996, Carlson was also employed at a bar in Erskin, Minnesota, where, on occasion, he worked while on second call. Carlson was also employed a bar and restaurant in Fosston, where he also worked as a bartender, and waiter, while on second call at First Care. As related by Carlson, he had an arrangement with the bar owner, who would "sub" for Carlson, or who would allow the bar to be understaffed, if Carlson was called out on second call. of all the Plaintiffs, only Carlson was a full-time employee of First Care.
At the close of the Trial, the Plaintiffs offered their Exhibit 63, which intimates that Carlson was deprived of pay for 65.75 hours of work. Plaintiffs' Exhibit 63 is derived from the Defendant's Exhibit 22, and merely concludes, without any testimonial support by Carlson, or any other witness, that, since the "Other" column, on Defendant's Exhibit 22, reports that Carlson worked 1,385.75 hours, and was paid for 1,320 hours, that the difference between those figures is attributable to unpaid work. Our review of the Record, however, and particularly of Defendant's Exhibit 22, satisfies us that, while Carlson was engaged in his managerial duties, he was called out, on occasion, to perform an ambulance run, for which he was paid his flat on-call pay rate, which would alter the pay that he would otherwise receive for his managerial service. See, Plaintiff's Exhibit 6. As such, Carlson was properly paid for the work in question and, notably, Carlson did not testify to the contrary. On the other hand, Fish unequivocally testify that all of the Plaintiffs, including Carlson, were properly paid for the hours they worked.
25. The Plaintiff Laurel K. Goss ("Goss") worked as a part-time EMT for First Care from May 3, 1991, until her resignation on July 1, 1998. From 1994, through the time of her resignation, Goss also worked full time at a convenience store in Fosston, where she regularly worked, for a total of eighty-hours every two weeks, while on second call for First Care, although she did not work there during her first call shifts. While employed at the convenience store, Goss would place her hand-held on a high shelf, and operate the radio in the pager mode. During the period in question, Goss was scheduled, at First Care, on eight to twelve shifts per month.
26. The Plaintiff Douglas P. Rotta ("Rotta") worked for First Care as a relief EMT for seven months — from November of 1997, through June of 1998 — when he resigned to pursue a full time job as a dispatcher with the Clearwater County Sheriff's Department. Rotta acknowledged that, while at First Care, he was merely awaiting an opening in an available law enforcement position. As a relief EMT, Rotta worked one weekend per month, and served as a substitute for others who were taking paid time off, or who were on vacation. As reflected in the Plaintiffs' testimony, substitution by one EMT for another, or by one paramedic for another, was allowable, without permission from management, although the substitutions were somewhat limited by the fact that there were only six available paramedics, and six available EMT's. The Records before us, however, reveals that substitutions, as an accommodation by one ambulance attendant for another, were not uncommon.
27. Sletten was originally hired as a part-time EMT on September 25, 1995. After receiving her certification, she became a part-time paramedic on June 17, 1996, and remained in that position until her resignation on May 24, 1998. From approximately August of 1997, through the time of her resignation, Sletten also worked part-time as the same bar and restaurant, In Fosston, at which Carlson was also employed. Her shifts a the bar include peroids of time when she was scheduled on second call for First Care.
Over the Defendant's objection, we allowed the admission of Plaintiffs' Exhibit 64, which purports to address Sletten's claim of unpaid hours. Much of the Exhibit is either internally inconsistent or reliant, impermissibly, on rank speculation. The computations contained in footnotes 1 and 3 of the Exhibit would appear to relate to the same period of time, but employ, without explanation, while the information contained in footnote 2 is noting more than pure conjecture and guess.
Most problematic, however, is the tabulation contained on the second page of the Exhibit. Ostensibly, that tabulation was intended to mimic the one contained on Plaintiffs' Exhibit 63, which pertained to Carlson's assertion that he had unpaid hours attributable to his "other duties." As we have previously explained, in Footnote 3 to this Opinion, Carlson's computation of unpaid hours was in error and, in any event, his circumstance of being in a management as well as, on occasion, on call, is inapposite to Sletten. Most inexplicable, however, is the Plaintiffs' substitution of a mere guess as to the hours that Sletten purportedly worked, during the period from October of 1995 through May of 1997, for a verifiable figure of the hours that Sletten worked, as tabulated in the "Other" column on Defendant's Exhibit 19. At best, the information contained on Plaintiffs' Exhibit 64 is sheer fiction.
28. Returning to the conflict in the testimony which related to the monitoring of the hand-helds on the scanner mode, Plaintiffs maintained that such a scanning featue was crucial to their being informed, as quickly as possible, of potential emergencies that would require their care. Testimony was given that, on at least two occasions, but for the fact that the on-call employee had been scanning each of the emergency response channels, their capacity to rapidly report to the emergent circumstance was enhanced beyond what would have been accomplished if they had awaited a dispatch from the Polk County Sheriff's Department. In this respect, the Plaintiffs uniformly testified that their practice of scanning all eight available radio channels provided a benefit to First Care, by improving the ambulance response time.
29. As a result of the Plaintiffs' asserted practice of using their radios to continuously scan for emergency response information, they testified that their on-call time was predominantly utilized for the benefit of First Care. Notwithstanding these accounts, we are obligated to resolve what has proven to be a significant conflict in the evidence. We do so upon the Record as a whole, applying both common sense, and the usual tools for the assessment of a witness's believability, inclusive of the demeanor of that witness. We are persuaded, by the preponderance of the credible evidence, that the monitoring of the hand-helds was not the significant burden that the Plaintiffs have related. Our finding is supported by the fact that, whether on first or second call, the need to monitor, as it has been related by the Plaintiffs, would be equally demanding. The Plaintiffs have testified, and First Care does not dispute, that, for motor vehicle accidents, both the first and second call team members would have to respond. While the second call team would have additional response time, tne Plaintiffs' stated concern to maximize the "Golden Hour" afforded. to the injured person — that is, the first hour after a reported injury — would be inconsistent with the fact that four of the Plaintiffs — Carison, Abrahamson, Goss, and Sletten — held a second job, which would have interfered with their cacacity to closely monitor all radio traffic.
30. We understand that certain of the Plaintiffs have testified that, while employed in another job during second call, they would place their hand-held in the pager toggle, but we can find no plausible reason to distinguish that circumstance from those occasions when the employee was not working on another job, but was occupied by personal, community, church, or similar interests. As a practical matter, the radio, in pager mode, would alert the employee to a call, without unnecessarily interrupting, on five minute intervals, information that, with predominant regularity, would not prompt any reaction on the employee's part. As noted, even on first call, at most, only 1.2 of the 288 radio communications, which would be received in a single shift, would, on average, result in an ambulance run. Given the insubstantial number of ambulance runs, on either first or second call, we can understand why the Plaintiffs' other employers were willing to offer employment to them — in some cases full-time employment — as it would not appreciably impact upon the employers' own business interests. On the operation of the hand- helds, being both more plausible, and credible, we give greater weight to the testimony of Aagenes, than we do to the conflicting testimony of the Plaintiffs. While the Plaintiffs may have engaged their radios in the scanning mode, when it suited their interests to do so, we find no compelling basis to believe that such a practice was for First Care's benefit. Paraphrasing Carlson, there would be no compelling reason to be interrupted in one's own pursuits for radio communications which did not require a response.
We say at most, because the 1.2 ambulance calls include all ambulance runs, and not merely those prompted by an unexpected trauma.
31. Our finding is further supported by the absence, in this Record, of any formal company policy instructing the ambulance attendants to monitor their radios, in the scanning mode, for the entirety of the twenty-four hour shift. We think that this is telling, for a company that took pains to formally publish a largely cosmetic dress code for its ambulance attendants, would not be expected to overlook what the Plaintiffs portend to be a most crucial aspect of the ambulance service's capacity to perform a quality public service. There is no record of anyone being disciplined for failing to routinely employ the scanning mode — a practice Aagenes, as a co-manager of the service seldom used — nor are there any employee complaints about the significant imposition that such a requirement would necessarily entail. Moreover, there is no showing that any employee of First Care's ambulance service, present or past, so much as expressed a concern to First Care that the exacting effort, to scan all of the available radio communications — if the Plaintiffs are to be fully believed — impacted upon their personal, vocational, social, or avocational pursuits. We are convinced, based upon the credible evidence of Record, that employing the hand-helds in their pager mode would allow compliance with the applicable on- call response times, and would not substantially impinge upon the ambulance employees' response time, or other personal interests.
32. As a consequence, we are not persuaded, given the entirety of the Record before us, that the Plaintiffs were as adversely impacted, by their on-call status, as they have related. Without doubt, "waiting to be engaged" has uncertainty tied to it, and may require a greater degree of flexibility, in planning one's on-call day, than would attend other vocations which are unaffected by an on-call requirement. While having to anticipate 1.2 calls per shift, or .3 for that matter, may discourage some activities that could impair the availability of the on-call worker, the Record reveals repeated occasions when no call outs were received by the on-call staff. We are not persuaded that the minimal number of calls per shift, on average, would discourage a wealth of activities which could be performed within five minutes of the ambulance garage, or within the longer response time afforded by the second call. Here, the Plaintiffs had no rigid, formal hours of actual work and, for such assignments as would entail instruction, or standby services, the employees would have advance notice of those duties and could plan accordingly. The fact that the employees were frequently paid for shifts on which they performed no actual work plainly inured to their own principal benefit.
Here, the Record is devoid of any testimony that specific vocational, or avocational, interests were precluded by the on-call response time. Although the Plaintiffs testified that, due to their fear of a call-out, they chose to cook simpler meals, read shorter written materials, and decline social engagements, we are not persuaded that the minimal number of ambulance runs, which are disclosed in this Record, substantially and consistently jeopardized any of the activities of which the Plaintiffs complained. Moreover, none of the Plaintiffs testified that, while in an oncall status, they could no longer engage in a specific hobby, or leisure sport, that was important to them. We can accept that being on-call imposed some limitations on the Plaintiffs' freedom, but we reject the Plaintiffs' intimation that, being on-call caused them to do little more than monitor their hand-held radios.
33. Notably, the Plaintiffs expressed concern about attending church, visiting a restaurant, viewing a movie — even on television — listening to a radio, reading a novel, or attending a school program, only to be required to leave abruptly in order to respond to an on-call dispatch. There is little evidence, however, that such a fear was frequently realized. We recognize that Carlson once was required to leave a movie, and Abrahamson was called out of four consecutive church services, but he was never called out of a movie, and Carlson could not recall ever being called out of a grocery store, or a restaurant. Indeed, none of the Plaintiffs, who were elsewhere employed on second call, expressed any concern, on their other employer's part, arising from an occasion on which they were called out of that employer's workplace. Given the Record as a whole, we are persuaded by the credible evidence, that the Plaintiffs' ability to freely participate in activities or their own choice was not substantially impeded by their on-call status. In so finding, we give greater weight to the testimony of Aagenes, who acknowledged that on-call duty imposed some disruption on his life, but that he lived a normal life within the five minute response time. Aagenes testified that he had been paged out of a grocery store, but that he was able to remodel his home, perform maintenance at the Fosston Fire Department, and go to movies while on-call. We find that Aagenes' testimony more closely comports with the Record as a whole, and is more persuasive than that of the Plaintiffs.
34. Nor do we overlook the fact that, with the exception of Rotta, who acknowledged that he had secured employment with First Care as he searched for a job in law enforcement, all of the Plaintiffs had extensive experience in the field of emergency medical services, and with First Care. Even as to Rotta, there were no surprises in the Plaintiffs' employment with the on-call requirements that applied at First Care. One of the Plaintiffs — Abrahamson — was on First Care's Board of Directors for a significant period of time, and he expressed no view that either he, or his fellow Board members, felt that anything was oppressive about First Care's on-call requirements, much less that First Care was taking advantage of the Plaintiffs for its own economic benefit. Indeed, he specifically denied any such intent. Another of the Plaintiffs — Carlson — was intimately involved in the management of First Care's ambulance employees for a significant number of years, and he expressed no view that he had participated in any effort to disadvantage his coworkers for First Care's benefit. Now the Plalitiffs voice complaints about the on-call work requirements that were never voiced while they were in First Care's employ. All that appears to have changed, insofar as we can tell, is that the Plaintiffs elected to leave First Care's employ, for reasons attributable to their acceptance of other employment, or because of nonspecific employment dissatisfaction. We are persuaded that, the Carlson, who was actively involved in renewing First Care's ambulance license, or if any of the other Plaintiffs, felt that the exacting twenty-four hour radio monitoring requirement, to which they all testified, impaired their capacity, in any appreciable way., to safely serve as emergency health care professionals, then they would have voiced that concern while still in First Care's employ. On the Record before us, they did not and, given the austerity of the on-call conditions that they have uniformly related, we cannot believe that significant deficiencies in the Plaintiffs' performances, on First Care's ambulance staff, would not have been quickly and readily apparent. As the Defendant has stipulated, at the Plaintiffs' request, they were regarded as excellent employees.
The closest to such a complaint, that we have found in this Record, is contained in Sletten' s letter of resignation dated April 24, 1998. See, Plaintiffs' Exhibit 52, at Bates No. 100872. There she expresses a number of criticisms of her work assignments First Care, including a "cut back in shifts," as "when [she] started as a Medic there were 12-16 shifts available per month [and] now [there are] 8 shifts." Id. She also voiced a fear that part-time employees, such as her, would be replaced by "relief Medics." She complained about non-reimbursement of meals during extended periods of work, but she expresses no criticism about the impositions of on-call duty, which now form the singular basis for the Plaintiffs' Complaint. We recognize that, among the objections expressed by Sletten, was "wage compensation for working overtime," but all concede that overtime was paid by First Care if an ambulance employee was called out and had to work for a portion of to following day off. We are not able to reasonably determine whether this cryptic comment related to Carlson's observation that, on ambulance duty, the attendants were paid for one of each three hours of on-call status, or whether Sletten was pinpointing the same complaint that underlies the Plaintiffs' action. We are able to conclude, however, that this comment was not the focal point of the concerns she itemized as underlying her resignation. Indeed, one would think that, if the conditions of on-call duty were as exacting as the Plaintiffs now urge, then Sletten would not have been concerned about being assigned fewer on-call shifts.
33. In sum, given our appraisal of the entire Record before us, we find that the Plaintiffs are due no additional compensation for their on-call duties and, therefore, we further find that their ESLA, and corresponding State law claims, must be dismissed as without merit.
The Minnesota Fair Labor Standards Act requires that employees be paid overtime for hours worked in excess of 48. See,Minnesota Statutes Section 177.25. However, Minnesota has adopted the FSLA's definition of "hours worked." See, Minnesota Rules § 5200.0120, Subpart 2. As a consequence, we apply the same analysis, as appropriate under the FSLA, to the Plaintiffs' wage and hour claims under Minnesota law.
34. The attached Memorandum is expressly made a part of these Findings of Fact, insofar as the Memorandum contains factual findings.
III. Conclusions of Law
1. The Court has jurisdiction over this action, pursuant to Title 28 U.S.C. § 1331, as the Plaintiffs premise their claims, in part, upon Title 29 U.S.C. § 201, et seq. The Plaintiffs' State law claims are properly before us pursuant to our supplemental jurisdiction, see, Title 29 U.S.C. § 1364 . The Court has personal jurisdiction over each of the parties.
In its Answer to the Plaintiffs' Complaint, First Care has admitted that the jurisdictional prerequisites for the application of the Federal and State Statutes, which are at issue here, have been satisfied, and we do not address those prerequisites further. Nor do we explore legal claims and defenses that the parties have not advanced, under other State and Federal Regulations. See, e.g., Christian v. City of Gladstone, 108 F.3d 929 (8th Cir. 1997), cert. denied, 522 U.S. 994 (1997); Lang v. City of Omaha, 186 F.3d 1035 (8th Cir. 1999). We are satisfied that, if any other regulatory, or statutory, provisions should apply to the issues before us, the parties would have drawn them to our attention in this well briefed litigation. As but one example, after the case was taken under advisement, counsel for the Plaintiffs did provide the Court, in a letter dated October 1, 1999, with an Opinion Letter of the United States Department of Labor, which was issued on November 16. 1988, and which we have considered in rendering our decision. See, Paula V. Smith, Hours Worked/EMTs/ On-call Time, 6A Wage and Hour Manual (BNA) at 99-5219.
2. The Plaintiffs have not proved, by a preponderance of the evidence, that the on-call duties imposed by the Defendant prevented them from using that time for personal pursuits. See,Cross v. Arkansas Forestry Comm'n, 938 F.2d 912, 916 (8th Cir. 1991). As a result, the Plaintiff's on-call time is not compensable under any of the Plaintiffs' theories of recovery, as it was not spent "predominantly for the employer's benefit."Armour Co. v. Wantock, 323 U.S. 126, 133 (1944). Rather, the greater weight of the credible evidence establishes that the employees were not engaged to wait, but were, in the parlance of the case law under the FSLA, "waiting to be engaged." See, Brekke v. City of Blackduck, 984 F. Supp. 1209, 1219 (D. Minn. 1997), citing Skidmore v. Swift Co., 323 U.S. 134, 137 (1944).
3. Due to the our determination, that the Plaintiffs' claims are not compensable under either Federal or State law, of necessity, the Plaintiff's assertion, that the Defendant's violation C: Title 29 U.S.C. § 201, et seq., and of Minnesota Statutes Sections 177.24 and .25, must fail, as the absence of a violation of any provision of the referenced statutory provisions precludes a finding that the alleged violations were willful. See, Title 29 U.S.C. § 255 Minnesota Statutes Section 541.07(5) .
4. The Defendant is entitled to a Judgment which dismisses the claims of the Plaintiffs' Complaint with prejudice.
5. The attached Memorandum is expressly made a part of these Conclusions of Law, insofar as the Memorandum contains legal conclusions.
IV. Order
That, given the foregoing Findings of Fact and Conclusions of Law, the Court directs that the Plaintiffs' Complaint be dismissed with prejudice, and that Judgment be entered in favor of the Defendant.
MEMORANDUM
A. Standard of Review. Under the FSLA, employees are titled to additional compensation for working more than 40 hours in a week. See, Title 29 U.S.C. § 207(a) While the Act provides for certain exemptions to the overtime requirement, these are "`narrowly construed in order to further Congress' goal of providing broad federal employment protection." Spinden v. GS Roofing Products Co., Inc., 94 F.3d 421, 426 (8th Cir. 1996), cert. denied, 520 U.S. 1120 (1997), quoting McDonnell v. City of Omaha, Neb., 99 F.2d 293, 295 (8th Cir. 1993), cert. denied, 510 U.S. 1163 (1994). For this reason, "[t]he burden is on the employer to prove that [an] exemption applies by `demonstrat[ing] that their employees fit plainly and unmistakably within the exemption's terms and spirit.'" Spinden v. GS Roofing Products Co., Inc., supra at 426, quoting McDonnell v. City of Omaha, Neb., supra at 296. Furthermore, "[t]he employer's obligation to pay premium overtime compensation, whatever the regular rate of pay, is statutory and cannot be waived or substituted by an agreement to work for less." Mumbower v. Callicott, 526 F.2d 1183, 1188 (8th Cir. 1975)
Moreover, it is well-settled that "[t]ime spent away from an employer's premises may constitute compensable hours of work if conditions imposed by an employer restrict the employee from using the time for personal pursuits." Cross v. Arkansas Forestry Com'n, 938 F.2d 912, 916 (8th Cir. 191). The Department of Labor, which is the Federal Executive Department that is charged with administering the FSLA, has promulgated Regulations concerning the compensability of on-call periods. The Regulations provide:
An employee who is not required to remain on the employer's remises but is merely required to leave word at home or with company officials where he or she may be reached is not working while on call. Time spent at home on call may or may not be compensable depending on whether the restriction placed on the employee preclude using the time for personal pursuits. Where, for example, a firefighter has returned home after the shift, with the understanding that he or she is expected to return to work in the event of an emergency in the night, such time spent at home is normally not compensable. On the other hand, where the conditions placed on the employee's activities are so restrictive that the employee cannot use the time effectively for personal pursuits, such time spent on call is compensable.29 C.F.R. § 553.221(d).
While there is no "legal formula to resolve cases so varied in their facts[,]" Skidmore v. Swift Co., supra at 136, the relevant inquiry focuses on whether the on-call time "is spent predominantly for the employer's benefit or for the employee's."Armour Co. v. Wantock, 323 U.S. 126, 133 (.944). "Stated somewhat more elegantly, `[f]acts may show that the employee was engaged to wait, or they may show that he waited to be engaged.'"Brekke v. City of Blackduck, supra at 1219, citing Skidmore v. Swift Co., supra at 137.
B. Legal Analysis. We conclude that First Care is entitled to Judgment on the Plaintiffs' claim that they should be paid overtime compensation for those hours in which they served on- call. this respect, and as we have previously noted, see, Brekke v. City of Blackduck, supra at 1220, in the vast majority of reported cases dealing with on-call time, the time was held not to be compensable under the ESLA. See, e.g., Dinges v. Sacred Heart St. Mary's Hospitals, 164 F.3d 1056, 1059 (7th Cir. 1999) (where EMTs living in rural area's required to arrive at hospital within seven minutes of receiving page, and had less than a 50% chance of being called in any 14-16 hour shift, on-call hours were not compensable); Andrews v. Town of Skiatook, Oklahoma, 123 F.3d 1327 (10th Cir. 1997) (EMT who was free to engage in any activity of his choosing as long as he remained clean, did not drink alcohol, and could respond to the station within five to ten minutes, which provided EMT access to entire town, coupled with low incidence of being called out, on-call time not compensable); Berry v. County of Sonoma, 30 F.3d 1174 (9th Cir. 1994) (coroners not entitled to compensation for on-call time despite the fact that they were on call 24 hours a day, were required to respond to pages within 15 minutes, and received three to six calls per day), cert. denied, 513 U.S. 1150 (1995);Gilligan v. City of Emporia, Kansas, 986 F.2d 410 (10th Cir. 1993) (sewer department employees not entitled to compensation for on-call time, although required to wear a pager, participate in nothing that might prevent them from hearing the pager, avoid alcohol, respond within 30 to 60 minutes of a call, and further, were subject to discipline for failure to satisfy these requirements); Armitage v. City of Emporia, Kansas, 982 F.2d 430 (10th Cir. 1992) (police detectives not entitled to on-call compensation despite requirements that they remain sober and wear pager while on call, that they respond to calls within 20 minutes, and that they were actually called into work one to two times per week); Bright v. Houston Northwest Med. Ctr. Survivor, Inc., 934 F.2d 671 (5th Cir. 1991) (en banc) (affirming grant of Summary Judgment despite fact that employee was always on call, was required to carry a pager at all times, could not become intoxicated, and was required to respond within 20-25 minutes, day or night), cert. denied, 502 U.S. 1036 (1992); see also,Owens v. Local No. 169, 971 F.2d 347 (9th Cir. 1992); Martin v. Ohio Turnpike Comm'n, 968 F.2d 606 (6th Cir. 1992), cert. denied, 506 U.S. 1054 (1993); Boehm v. Kansas City Power Light Co., 868 F.2d 1182 (10th Cir. 1989); Halferty v. Pulse Drug Co., 864 F.2d 1185 (5th Cir. 1989); Kelly v. Hines-Rinaldi Funeral Home, Inc., 847 F.2d 147 (4th Cir. 1988), cert. denied, 493 U.S. 835 (1989);Norton v. Worthen Van Service, Inc., 839 F.2d 653 (10th Cir. 1988); Rousseau v. Teledyne Movable Offshore, Inc., 805 F.2d 1245 (5th Cir. 1986), cert. denied, 484 U.S. 827 (1987); Darrah v. Missouri Highway and Transp. Comm'n, 885 F. Supp. 1307 (W.D. Mo. 1995); Burnison v. Memorial Hospital, Inc., 820 F. Supp. 549 (D. Kan. 1993); Pilkenton v. Acppalachian Regional Hospitals, Inc. 336 F. Supp. 334 (W.D. Va. 1971).
Thus, the general rule is that, "although every on-call policy creates some imposition on the life of the employee subject to the terms thereof, such time will nonetheless rarely be compensable." Darrah v. Missouri Highway and Transp. Com'n, supra at 1311. Furthermore, those cases which have departed from this general rule demonstrate the exceptional circumstances which must obtain for on-call time to be compensable under the FSLA. First, in Renfro v. City of Emporia, Kansas, 948 F.2d 1529 (10th Cir. 1991), cert. dismissed, 503 U.S. 915 (1992), the plaintiffs were firefighters who were scheduled for six 24-hour shifts within every 19 day period. After the completion of each of these shifts, they were required to remain on-call for an additional 24 hours. While the firefighters were not required to remain in the firehouse during the on-call periods, they had to be able to respond to a call within 20 minutes and — of most significance — while on-call, the firefighters received as many as 13 calls in a shift, with an average of four to five per shift. Id., at 1532. According to the Court "the frequency with which the firefighters were subject to callbacks distinguished this case from other cases which have held on-call time as noncompensable."Id., at 1532-33. Under these onerous circumstances, the Court concluded that the District Court had reasonably determined that the firefighters were "engaged to wait" and, therefore, that they were eligible for compensation under the FSLA. Id. at 1534
The other exceptional case was issued by our Court of Appeals, see, Cross v. Arkansas Forestry Comm'n, supra, and contains that Court's only pronouncements, at least to our knowledge, on this issue. In Cross, the plaintiff/employees were State forest workers who, during their work periods, were "subject-to-call" 24 hours per day, and seven days a week, in the case of a fire emergency. When subject-to-call, the Plaintiffs were provided with hand-held radios, and they were required to monitor the traffic of these radios at all times, indeed, they had even trained themselves to monitor the radio traffic while sleeping.Id., at 914 and n. 4. In the event of an emergency radio call, the firefighters were required to respond within 30 minutes, or face discipline. Id.
Because of these extraordinary constraints, the Court concluded that a reasonable juror could find that the employees were "engaged to wait" and, accordingly, the Court reversed the District Court's grant of Summary Judgment in the employer's favor. Id., at 917. In so doing, the Court noted the factors which, in its view, distinguished the case from those in which Summary Judgment would have been proper. In the words of the Court:
[T]he facts of this case are unlike typical "on-call" cases in two respects. The Commission requires the employees to monitor radio transmissions continuously during the work week, rather than contacting them exclusively by telephone or electronic pager. * * * Because the radio must be on at all times, the employees' ability to entertain in their homes, attend social gatherings, attend church services or engage in other personal pursuits is limited. The employees' ability to enjoy common activities such as watching television or reading is also decreased because they must devote attention to radio transmissions. Additionally, instead of being placed "on-call" for a defined number of hours during a work period, the Commission's policy places the employees on subject-to-call status twenty-four hours per day every day of a work period, unless a supervisor agrees to substitute for a period of time. * * * Thus, the employees do not receive a respite during the work period from the subject-to-call requirement.Id. [citations and footnote omitted]
Accordingly, the features which distinguished Cross from those cases, in which on-call time was found not to be compensable, were first, that the employees were not "merely waiting to be engaged," but were "actually required to do an affirmative act while waiting — listen to the radio for emergency transmissions." Darrah v. Missouri Highway and Transp. Com'n, supra at 1312. Second, the employees were on-call 24 hours a day, 7 days a week, without respite. Id.
Recognizing that Cross is most apposite, the parties have addressed the evidence at Trial in the context of the reasoning of that case. While we find Cross to be closely instructive,Cross principally dealt with the proofs required for Summary Judgment while, here, we must weigh and balance the evidence as a factfinder, a role immical to the Court's function on Summary Judgment. Were the issue before us a question of granting or denying Summary Judgment to either party, on the basis of Rule 56, Federal Rules of Civil Procedure, in general, and of Cross, in particular, the Motion would be properly denied. Accordingly, we turn to assess the conflicting factual contentions, recognizing that the issues before us are intensely fact-driven.Skidmore v. Swift Co., supra at 136-37; Ingram v. County of Bucks, 144 F.3d 265, 267 (3rd Cir. 1998)
The Plaintiffs have attempted to blend their experience, as on- call employees, with those aspects of the Court's decision, inCross, which would militate toward a finding of compensable overtime. Notably, each of the Plaintiffs testified to a routine practice of intensely monitoring their hand-held radios, assertedly, so as to minimize their response time to a call. Nevertheless, the monitoring was not required because First Care had no other means to page the ambulance attendants. All concede that the pager mode provided a means to be alerted to an on-call dispatch, and no one testified that, in employing the pager mode, the five minute response time could not be satisfied. Indeed, Aagenes testified that he routinely employed the pager mode in order to minimize the disruptions that the scanner mode would impose upon his on-call time. As we have expressly found, Aagenes' testimony is persuasive. Unlike the circumstances inCross, the Plaintiffs had an available means of paging that did not necessitate their total engrossment in listing to the scanner channel, as they have alleged. In sum, the Record before us is barren of credible evidence that the pager mode was an ineffective means of calling out First Care ambulance employees.
Our determination, that the pager mode of radio communication was an accepted, and acceptable, means of dispatching First Care ambulance attendants, necessarily undercuts the force of the Plaintiffs' assertion, that they were unduly restricted, in the freedoms of their on-call hours, by a plaguing, uninterrupted, need to monitor the scanning channel of their hand-helds. Without this nagging draw on their on-call time, they have presented little in the way of a cogent showing that First Care "implemented onerous on-call policies," which led to a "significant interference with [their] personal [lives]." Ingram v. County of Bucks, supra at 268. As the Court framed the issue, in Aiken v. City of Memphis, 190 F.3d 753, 760-761 (6th Cir. 1999), cert. denied, — U.S. —, 120 S.Ct. 1164 (2000), quotingDade County v. Alvarez, 124 F.3d 1380, 1384 (11th Cir. 1997), cert. denied, 523 U.S. 1122 (1998), "`an employee's free time must be severely restricted for off-time to be construed as work time for purposes of the FLSA.'" Once alerted to a page, the first call would report for duty, and the second call would be obligated to await the first call's acknowledgment of the page, by "answering up." Neither the time involved in such actions, nor the imposition they caused, could responsibly be considered a severe restriction.
We find Cross also distinguishable because, there, the employees were obligated to forego other activities because of the need to monitor their radio calls. As our Findings reflect, there is no such impact here, as the Plaintiffs, like Aagenes, could engage in activities of personal, daily living, that were not directed at the performance of First Care's work. We recognize that the five minute response time, for the first call shift, is shorter than that addressed in some of the other cases and, indeed, is shorter than that which First Care imposes upon its home health care workers (20 minutes), maintenance workers (20 minutes), and laboratory employees (15 minutes). The evidence reflects, however, that these other workers had an obligation to work a regular shift, and then be available, on-call, thereafter. With but modest exception — for scheduled training or standby duties — that was not the case for the Plaintiffs.
Given the emergent needs which invoke the services of an ambulance attendance, we cannot say that the five minute response time is without a proper cause for the expedition, nor do we believe that, given the rural setting of Fosston, and the surrounding PSA, the response time is unduly restrictive. In our view, response times are relative — they should be assessed in the context of the conditions in which they are imposed. Here, the bulk of the Plaintiffs lived within a mile of the ambulance garage, for most if not all of the relevant time period, and a five minute time constraint, in that context, would not seem to be inordinate. While a five minute response time could be extremely constraining in an heavily populated urban setting, we do not find the response time unduly restrictive here. In this, we find support in the Opinion Letter of the Department of Labor, that the Plaintiffs have drawn to our attention. See, Paula V. Smith, Hours Worked/EMTs/On-call Time, 6A Wage and Hour Manual (BNA), at 99-5219. There, the Department was invited to express an opinion as to the constraining impact of a five-minute response time, to which the Department replied:
We are mindful that certain of the Plaintiffs — specifically Rotta and Abrahamson — lived sufficiently far away, for some of the relevant time period, that, on first call, they would use the personal quarters which were provided to the employees at the ambulance garage. The evidence reveals, however, that their circumstances were the exception, and not the rule. Moreover, there was no requirement that the employees remain at the garage, during on-call service, unless they were scheduled, on occasion, to perform work there, such as cleaning or equipment checks.
It is difficult to reply unequivocally to the question of what constitutes restrictive on-call conditions. Whether a particular response time is ample to provide an employee freedom to follow his or her own pursuits while on call is a question of fact that can be determined only after a careful examination of all of the facts in a given case. Based upon the facts in your particular case, it is our opinion that the 5-minute response time required by your EMTs is too restrictive for employees to effectively use on-call time for their own purposes. We would, therefore, consider the on-call time as compensable hours worked under FLSA.Id. at 99-5220.
Notably, the Department did not categorically respond to — the inquiry, by concluding that a five-minute response time either is, or is not, too restrictive, but appraised the available facts, in an individualized context, to reach an informed judgment. We have done the same here, and under the evidence presented by this Record, we have, and do, find that the five- minute response time is not too restrictive on the Plaintiffs' opportunity to follow his or her own pursuits while on-call. In no small part, our finding is predicated on the Plaintiffs' own testimony — and particularly that of Carlson — that the five- minute response time was routinely satisfied, if not bettered. While Carlson allowed that not every employee met the response time "on the nose," he also expressly noted that, to his knowledge as one of the co-managers of the ambulance service, no one had been disciplined for failing to satisfy the five-minute response requirement.
We acknowledge that the Plaintiffs sought to obtain advance warning of a need for ambulance services, and that they employed the scanning mode for that purpose. They conceded however, that First Care did not have a written policy requiring them to do so, nor was anyone disciplined for not scanning the channels in advance of a page. While the Plaintiffs are to be commended for the dedication to public service, that dedication would not properly transform a matter of personal preference, into an employ-er imposed job condition. By every appearance, each of the Plaintiffs has demonstrated initiative and perseverance in bettering his or her qualifications as a health care professional but, absent some agreement to the contrary, such initiatives would not be accomplished at the employer's expense.
Lastly, with respect to Cross, unlike the employees there, the Plaintiffs were not required to remain on-call for 24 hours a day, seven days per week, without respite. Instead, their on-call hours were confined to, in the case of full-time employees, 10 shifts in a two week period. of course, in the case of part-time employees, this burden was even less. Moreover, unlike the firefighters in Renfro, while on-call, the Plaintiffs were not actually called with a frequency that would support a finding that their time, on-call, was predominantly spent for First Care's benefit. The infrequency of the ambulance runs — even when including those which were neither emergent nor unexpected — establish that the demands of on-call service were not particularly burdensome. See, Burnison v. Memorial Hospital, supra at 552, 554; Armitage v. City of Emporia, supra at 432.
We do not overlook the restrictive influence of either First Care's dress code, or the opportunities for substitution because of conflicts. As to the employees' obligation to wear a uniform, there is no showing in this Record, that the uniform is something other than a white shirt, blue pants, and black shoes. We are presented with no evidence that the uniform was distinctive by way. of labeling or logos, and none of the Plaintiffs suggested that. there freedom, on-call, was constrained in any way by First Care's dress code. Similarly, the evidence reveals that shift changes were restricted by the limited number of paramedics and EMT's, even though First Care's management did not impose restrictions on such substitutions. Apparently, the inability of Goss to find a replacement on July 4, 1998, so she could work at her other full-time job, led to her voluntary quit, but we are also impressed that, less than a month and one-half before, Sletten quit, in part, because she wanted more shift work. Given this record, we veiw the opportunity for shift changes to be situational, and not endemic, as the Record reveals occasions when conflicts, paid time off, or other causes, resulted in one ambulance attendant covering for another.
We add two final points. First, we reiterate that the freedom of the Plaintiffs, while on-call, was impinged, but that is inevitably the case whenever an employee is subjected to emergency oncall status. See, e.g., Bright v. Houston Northwest Med. Ctr. Survivor, Inc., supra at 677; Darrah v. Missouri Highway and Transp. Com'n, supra at 1313. Nevertheless, "every case that has addressed this issue tells us that without some significant additional restriction on the employee's off-duty time, such that the time can be said to have been spent primarily for the employer's benefit, the time will not be compensable."Darrah v. Missouri Highway and Transp. Com'n, supra at 1313. Here, the Plaintiffs have failed in proving that their time spent on-call was primarily for First Care's benefit, and that fatal deficiency requires the entry of Judgment for First Care. Second, we have been obligated to resolve conflicting issues of fact, and we have done so with the solemn deliberation that such resolutions warrant. In doing so, we have assessed the witnesses credibility and, invariably, such an assessment leads to the rejection of some, or all, of one witness's testimony, in favor of some, or all, of another's. In our credibility appraisals, we do not suggest that any witness engaged in deliberate falsehood, for perceptions, and recollections, are no more than what they are, individualized impressions, and remembrances. Rather, we have considered each of witnesses testimony, in the framework of the entirety of this Record, with the application of both common sense, and common experience. Our Findings are so founded.
Given the Record presented, we find and conclude that First Care properly compensated the Plaintiffs for their on-call time, and Judgment for First Care should be entered.
R.L.E.