Opinion
Civil Action 21-cv-01702-PAB-MEH
02-22-2023
LARRY L. BARNES, Plaintiff, v. OMNICELL, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty United States Magistrate Judge
Before the Court is Plaintiff's Second Motion for Summary Judgment [filed December 14, 2022; ECF 43] and Defendants' Motion for Summary Judgment [filed December 30, 2022; ECF 45]. The motions were referred to this Court for recommendation. ECF 44, 46. The motions are fully briefed, and the Court finds that oral argument will not materially assist in their adjudication. Based upon the record herein and for the reasons that follow, the Court RECOMMENDS that Plaintiff's motion be denied, and Defendant's motion be granted.
BACKGROUND
I. Procedural History
Plaintiff commenced this action on June 22, 2021. In his Complaint (ECF 1), Plaintiff, proceeding pro se, alleges that he was not paid for time worked while employed as a Senior Technical Service Engineer for Defendant Omnicell (or its predecessor entity). Plaintiff alleges that he was on duty twenty-four hours per day, seven days per week. ECF 1 (passim). Plaintiff's Complaint asserts claims in violation of the Fair Labor Standards Act of 1938 (FLSA), 44 U.S.C. §1507, et seq., agency compliance with the code of federal regulations, 29 C.F.R.§785.22 et seq., 29 C.F.R.§785.16 et seq., the Colorado Wage Act C.R.S. §8-1-101 et seq.; and 7C.C.R. 1103-1 et seq., Code of Colorado Regulations.
The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.
II. Defendants' Objections to Plaintiff's Exhibits
As a preliminary matter, Defendant objects to numerous of Plaintiff's exhibits submitted because they were not authenticated through deposition testimony or affidavit, although Plaintiff included the statement “I declare under penalty of perjury that the foregoing is true and correct.” These include documents attached to Plaintiff's Response in Opposition to Omnicell's Motion for Summary Judgment, ECF 52 (Exhibits 52-1 through 52-3, 52-6, 52-7, 52-9 through 52-15, 52-17, 52-19 through 52-26, 52-291 through 52-34- 52-62). Other documents have commentary or highlighting not present in the original documents (ECF 52-4, 52-5, 52-8, 52-16, and 52-18). Defendant also objects to certain exhibits submitted in support of Plaintiff's Motion for Summary Judgment, ECF 43 (43-1 through 43-7; 43-9 through 43-13; and 43-15, 43-16, and 43-19 (exhibits F-K; M-Q, S, T, and W). Defendant challenges Plaintiff's unauthenticated documents in support of his responses to Omnicell's Statement of Material Facts (ECF 45) numbered 5, 9, 11, 16, portions of 25, and 26.
Defendant argues these exhibits should be excluded because they are not admissible evidence. “A court may not consider all proffered evidence when ruling on a summary judgment motion; only admissible evidence may enter the analysis.” Bullock v. Wayne, 623 F.Supp.2d 1247, 1252 (D. Colo. 2009). “While the party opposing summary judgment need not produce evidence in a form that would be admissible at trial, the content or substance of the evidence must be admissible.” Law Co. v. Mohawk Constr. & Supply Co., 577 F.3d 1164, 1170 (10th Cir. 2009) (quoting Wright-Simmons v. City of Okla. City, 155 F.3d 1264, 1268 (10th Cir. 1998)). As for the attached documents, “[a]s a condition precedent to admissibility, Fed.R.Evid. 901 requires authentication or identification with ‘evidence sufficient to support a finding that the matter in question is what its proponent claims.'” Strepka v. Jonsgaard, No. 10-cv-00320-PAB-KMT, 2011 WL 2883375, at *6 (D. Colo. July 18, 2011); see Jaramillo v. R&S Steel, Inc., 2011 WL 662778, at *3 (D. Colo. January 20, 2011) (“The document is not authenticated; it is not sufficiently identified; it appears to be impermissible hearsay; and it contains no facial indicia of reliability. Therefore, the document is not appropriate for consideration on summary judgment.”).
Here, Plaintiff has not accompanied the above-listed exhibits with an affidavit that authenticates the documents, although he declares that the statements are correct. Defendant explains, and I have confirmed, that some documents appear to have been altered, some appear to be cut and pasted from other versions, and we take defense counsel at her word that not all were produced to Defendant in the form presented. Therefore, Plaintiff has not presented sufficient evidence to “support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a). Therefore, I respectfully recommend that the documents not be considered for the Motion.
Even so, the recommendation would not be different. If the Court were to find these documents admissible and properly before it, plaintiff fails to demonstrate that his on-call time is compensable.
II. Material Undisputed Facts
A. Defendant's Proffered Facts
The court makes the following findings of fact, originally set forth and enumerated in Omnicell's Motion, ECF 45, viewed in the light most favorable to the non-movant.
1. Plaintiff has been employed by Omnicell (or a predecessor entity) since 2003. Exhibit A (ECF 45-1), Deposition Transcript of Plaintiff, Parts 1 and II, 29:13-15.
2. Omnicell sells and maintains medication control devices, including cabinets that store and dispense medications; robots that fill prescriptions; and packagers, sealers, and MedCarousels that package, seal, store, and dispense medications. Id. at 16:24-17:7.
3. Plaintiff was employed by Omnicell as a Technical Service Engineer (“TSE”). Id. at 15:17-18.
4. In 2018, Plaintiff was promoted to a Senior Technical Service Engineer (“STSE”). Id. at 15:22-16:2.
5. Despite the promotion, his responsibilities remained the same. Id. at 16:12-13.
6. He remained in that position until June 2021. Id. at 28:3.
7. Plaintiff worked remotely from his home in Pine, Colorado. Id. at 25:6-7.
8. As a TSE, his duties included providing troubleshooting, repair services, remote monitoring, and preventive maintenance for Omnicell pharmacy products, which might include providing repair services for “vending-like” machines that dispense mediation and/or medical equipment. Id. at 17:7.
9. Pursuant to the contracts Omnicell had with hospitals and other healthcare providers, a TSE was required to make initial telephone contact with a hospital or healthcare provider within one hour of the service-request call. Id. at 32:23-33:1.
Plaintiff now appears to claim the response time was thirty minutes. He has attached to his Response to this finding Exhibit 14, titled “2017 Service Support Plans,” and cites to page two, which has the heading Omnicell Service Support Plans, and lists the call back response time as “30 Minutes Monday - Friday 6 AM - 6 PM CST, 2 Hours Monday - Friday 6 PM - 6 AM and Sat-Sun/Holidays.” ECF 52-14 at 3. Because this document has not been authenticated, the Court will not consider it. Nor can I discern if this was in effect during the relevant time period. Regardless, under oath at his deposition, when asked what Omnicell's expectations were for how quickly he must respond, Plaintiff stated, “To respond to the notification, we had one hour.” ECF No. 45-1 at 9-10.
10. For urgent service requests, on-site visits were generally to be made within six hours of reporting the problem but could be scheduled for several hours or days later if not urgent, and depending on whether parts or equipment would need to be ordered. Id. at 33:19-23; 34:1622; 78:3-8; 218:8 - 219:2; 220:16-221:5; 294:16-20.
11. The vast majority of Plaintiff's calls and service requests occurred during the daytime, Monday through Friday, because that was when clinics are open, and when hospitals tend to perform surgeries and need supplies. Id. at 221:6-9; Exs. 2 and 3 to Ex. B (ECF No. 45-3, Affid. of Joe Coyne, Senior Director of Service for Omnicell).
12. The majority of Plaintiff's job duties were troubleshooting duties that could be performed by telephone, but on occasion, he was required to travel to a hospital site to make a repair. Ex. A, 24:18-25:3; Ex. B at ¶ 4.
13. Plaintiff estimated that he traveled to a site for a service request outside of regular working hours “probably once every couple of weeks.” Ex A, 27:1.
14. As a TSE, Plaintiff's area included parts of Colorado, Kansas, Nebraska, and Wyoming, but no locations were more than eight hours from his home. Id. at 16:16-17.
15. Portions of Plaintiff's territory were also covered by other Omnicell employees and third-party contractors. Id. at 35:9-21; 36:1-4.
16. Outside of responding to service calls, Plaintiff had few other required duties, and although he was paid for forty hours of work each week, regardless of how many hours worked up to forty, he was permitted to spend his time between calls as he wished. Id. at 17:13-15; 226:23-227:3; Ex. B at ¶¶ 5, 7.
17. Plaintiff was paid time and one-half for all hours worked over forty. Ex. A, 17:20-22.
18. Plaintiff regularly reported that he worked at least eight hours a day, five days a week, even when he had few service tickets, claiming that he would sit at his desk and wait for calls to come. Id. at 172:9-15; 174:14-23; 226:23-227:3; Ex. B at ¶ 6.
19. Plaintiff was generally “on call” and did not have regular working hours. That meant he was free to spend his time as he wished each day between responding to service tickets. Many days each month he had no service ticket requests at all, so he had entire days where he would have few to no work responsibilities. Ex. B at ¶¶ 6, 7.
20. Any services he provided while on-call came through, and were to be logged through, a ticketing service, and were to be claimed on his timecard so he could be paid. Ex. A, 83:25-84:3.
21. Plaintiff was paid for all time he reported on his timecard, including any calls he reported taking while on-call, even if the calls came to him directly and he subsequently failed to log them. Id. at 8:24-9:9; 10:6-10. However, in one instance Plaintiff was told by a manager he would not be paid for time he claimed he needed to close a ticket. Id. at 239:1-5.
22. In addition to regular and overtime payments, Plaintiff was paid a $25.00 bonus for each Saturday and Sunday on-call shift he worked. Ex. B at ¶ 6.
23. Plaintiff was able to use his time as he wished during his on-call shifts,provided he could respond to mobile telephone calls within one hour of notification. Ex A, 48:6-14; 50:16-54:7.
Plaintiff testified he spent time on other tasks in addition to responding to service tickets, however, there is no dispute he was told by Bill Everhart that he should not sit at his desk waiting for calls:
A. “He-well, he did say that he didn't want me just sitting at my desk, waiting on a call. He actually called me one day and asked me what I was doing. And I said ‘[w]ell, sitting at my desk right now, waiting on calls to come in.' And he said, ‘I don't want you doing that.'
Q. What did he want you to do instead?
A. I assume he wanted me to do something else so that I think wouldn't put down the time on my timecard.
Q. You mean doing something for yourself on your own time?
A. Yes. Correct.Ex. A, 172:9-22.
24. Plaintiff typically went to bed at 8:30 or 9:00 p.m., and would get up around 8:00 a.m. Id. At 21:12-15.
25. He slept with his mobile telephone next to him at night but received very few service requests overnight. Id. at 19:11-13; 20:25; 21:21-23.
Q. .. .how many emails do you think you answered between 10:00 p.m. and 6:00 a.m. typically?
A. Answer? Not many. Ex. A, 19:11-13.
Q. And typically, how many times a night do you think it would alert you between 8:00 [p.m.] and 8:30 [a.m.]?
A. .. I would say six notifications. Some of those would be emails, some would be text messages or other apps.
Q. Okay. Did you respond to each of those notifications throughout the night?
A. I would not respond to each one, but I would check. Ex. A, 22:2-14.
26. Plaintiff was also entitled to vacation time each year, and regularly took three or more weeks of vacation per year.Ex. 8 to Ex. A (Employee Daily Totals Report, dated 1/1/2000-9/12/21, ECF 45-2).
While not every vacation request was approved, there is no dispute that Plaintiff took twenty-six days of time off in 2018, twenty-three days in 2019, twenty-two days in 2020, and twenty-five days in the 2021 through August 2021. Ex. A, 168:19-170:14.
B. Plaintiff's Proffered Facts
In addition, the following material facts, as set forth in Plaintiff's motion,are undisputed:
Certain of Plaintiff's “Proposed” (as opposed to Undisputed) Findings of Fact fail to comply with the clear direction of Chief Judge Brimmer's Practices Standards, of which Plaintiff is aware (ECF 20), which require: “Each separately numbered and paragraphed fact must be accompanied by a specific reference to material in the record which establishes that fact.” III.F.3 b.ii. These include Plaintiff's Proposed Findings numbered 17, 18 G-L, and 20-26. ECF 43 at 6-8.
1. Defendant's address and contact information set forth in Section B of the Complaint are correct.
2. Jurisdiction and diversity of citizenship is not disputed.
3. Monitoring emails while on call, outside of regular business hours, to the extent those emails accompany a service ticket and provide additional response information or context, was mandatory; Plaintiff was not required to otherwise monitor emails while on call outside of regular business hours. See Ex. B, at ¶ 13).
4. Likewise, monitoring texts while on call, outside of regular business hours, to the extent those texts dispatched service tickets, was mandatory; Plaintiff was not required to otherwise monitor texts while on call outside of regular business hours. See id. at ¶ 13.
5. On occasion, Plaintiff was contacted on a day off with service ticket requests, but when that happened, he was paid for the entire day off (even though he would not be working the entire day) and given another day off in lieu of the interrupted day off. See id. at ¶ 15.
6. Plaintiff was required to monitor telephone notifications when he was on call so that he would be made aware of any urgent service requests; however, Plaintiff had very few service calls overall, let alone after hours. See id. at ¶¶ 6, 13.
7. Plaintiff's coverage area included parts of Colorado, Kansas, Nebraska and Wyoming, See id. at ¶ 5.
8. Plaintiff's on-call duties involved responding to service ticket requests, and these duties did not change regardless of whether he was on call during regular business hours or after regular business hours. See id. at ¶ 9. Plaintiff only had to monitor for service ticket requests outside of regular business hours. He was not required to monitor routine, non-urgent communications, nor respond to them. See id. at ¶ 13.
9. Plaintiff did not use a pager and instead used a mobile telephone and laptop.
LEGAL STANDARDS
A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). A court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The moving party bears the initial responsibility of providing to the court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). ''[W]here the moving party has the burden of proof -the plaintiff on a claim for relief or the defendant on an affirmative defense-the showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.'' Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015) (quoting Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986)). ''In other words, the evidence in the movant's favor must be so powerful that no reasonable jury would be free to disbelieve it. Anything less should result in denial of summary judgment.'' Id. at 1154 (quoting 11 Moore's Federal Practice,' 56.40[1][c] (Matthew Bender 3d Ed. 2015)). Only evidence for which the content and substance are admissible may be considered when ruling on a motion for summary judgment. Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1210 (10th Cir. 2010).
If the movant properly supports a motion for summary judgment, the non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, the opposing party may not rest on the allegations contained in its complaint but must respond with specific facts showing a genuine factual issue for trial. Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (''The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.''); see also Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown A>by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.''' Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324); see also Mountain Highlands, LLC v. Hendricks, 616 F.3d 1167, 1170 (10th Cir. 2010) (''On those issues for which it bears the burden of proof at trial, the nonmovant Amust go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to [its] case in order to survive summary judgment.'') (quoting Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007)). ''The court views the record and draws all inferences in the light most favorable to the non-moving party.'' Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
Cross-motions for summary judgment are treated as two individual motions for summary judgment and held to the same standard, with each motion viewed in the light most favorable to its nonmoving party. Banner Bank v. First Am. Title Ins. Co., 916 F.3d 1323, 1326 (10th Cir. 2019).
When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). Moreover, because Plaintiff is proceeding pro se, the court, “review[s] his pleadings and other papers liberally and hold [s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). At the summary judgment stage of litigation, a plaintiff's version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir.2009). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d at 1312.
ANALYSIS
The central issue before the Court is whether the time worked by Plaintiff was compensable. “Whether periods of waiting for work should be compensable under the FLSA is to be determined by the facts and circumstances of each case.” Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 654 (10th Cir. 1988). To be compensable, the restriction on the employee's time must be “so burdensome as to render it time predominantly spent for the benefit of the employer.” Gilligan v. City of Emporia, 986 F.2d 410, 412 (10th Cir. 1993). “While courts have indicated that ‘[w]hether and to what extent employees are able to use on-call time for personal activities is a question of fact,' they have also stated, ‘whether limitations on the employees' personal activities while on-call are such that on-call waiting time would be considered compensable overtime under the FLSA is a question of law . . . .'” Knapp v. Am. W. Airlines, 207 Fed.Appx. 896, 898 (10th Cir. 2006) (quoting Berry v. County of Sonoma, 30 F.3d 1174, 1180 (9th Cir. 1994)). Courts sometimes frame the ultimate question as “whether the employee is ‘engaged to wait' or ‘waiting to be engaged.'” See Pabst v. Oklahoma Gas & Elec. Co., 228 F.3d 1128, 1132 (10th Cir. 2000) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 137, 65 S.Ct. 161, 89 L.Ed. 124 (1944)) (internal alterations omitted). Alternatively, courts ask whether the on-call time is spent “primarily for the benefit of the employer and his business.” Armour & Co. v. Wantock, 323 U.S. 126, 132, 65 S.Ct. 165, 89 L.Ed. 118 (1944).
In the Tenth Circuit, the established law is that employees “‘should not be compensated for being on call' when they are free to leave their employer's premises and to pursue personal activities.” Boehm v. Kansas City Power & Light Co., 868 F.2d 1182, 1184 (10th Cir. 1989) (citing Norton, 839 F.2d at 655). This holds true even if the employee's personal activities are limited by the on-call restrictions. See Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 655 (10th Cir. 1988).
A. Factors Enunciated in Case law
In Nitzkorski v. Columbine Emergency Med. Servs. Inc., 445 F.Supp. 3D 1181, 1189-90 (D. Colo. 2020), the Court addressed the applicable framework:
The regulations at 29 C.F.R. §§ 785.14-22 provide some further clarity. Courts have considered many factors in determining whether an employee plaintiff had use of on-call time for personal purposes: (1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee's movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during call-in time. Owens v. Local No. 169, Assn of W. Pulp & Paper Workers, 971 F.2d 347, 350-51 (9th Cir. 1992), as amended (Aug. 18, 1992) (citing Armour, 323 U.S. at 134, 65 S.Ct. 165; Norton, 839 F.2d at 65556; Renfro v. City of Emporia, 948 F.2d 1529, 1538 (10th Cir. 1991); Brock v. El Paso Nat. Gas Co., 826 F.2d 369, 373 (5th Cir. 1987); Cross v. Arkansas Forestry Comm'n, 938 F.2d 912, 916-17 (8th Cir. 1991)). This list is illustrative, not exhaustive. No one factor is dispositive. Id.
I will address each of these factors seriatim.
1. Whether there was an on-premises living requirement
Omnicell did not require that Plaintiff live onsite, but rather, required him to live within one hour of the Denver metropolitan area. (Ex. A, Plaintiff's deposition, ECF 45-1 at 8). He worked remotely from his home in Pine, Colorado.
2. Whether there were excessive geographical restrictions on employee's movements
While Plaintiff was required to live within one hour of downtown Denver, he also needed to be within mobile telephone range so that he could respond to an initial service call within one hour, and once the initial contact was made, he could troubleshoot problems with the client over the telephone, or if he needed to be onsite to address the issue, he could negotiate when he would arrive. Urgent requests required reporting within six hours, if possible. He claims he had to sacrifice skiing, camping, and hiking, but admits he was never given a bad review or disciplined for pursuing such activities.
3. Whether the frequency of calls was unduly restrictive
Here, Defendant has produced evidence of the Plaintiff's call backs. Joe Coyne, Senior Director of Service for Omnicell, attested:
In addition to being paid for 40 hours of work and time-and-one-half for any time worked over 40 hours per week, Mr. Barnes was paid an additional $25.00 for each Saturday and Sunday he was on call. A copy of Mr. Barnes' time records dating back to 2018 are attached as Exhibit 1, showing that he never claimed to work fewer than 40 hours, despite having no service tickets at least half of the days each month. Exhibit 2 shows the log of his service tickets requests, and a summary of same.ECF 45-3. The record evidence supports the following. Of the 1126 days between July 1, 2018 and July 31, 2021, Plaintiff only sent or received texts, the method by which service tickets are assigned (not every text sent or received reflects an actual service request) on 484 days, or less than 43% of the days he was on call. ECF 45-6 at 338. Of those 484 days, he only received or responded to texts between the hours of 8:00 p.m. and 8:00 a.m. on 143 nights, or 12.7% of the days he was on call. Of those nights, he only responded to texts on thirty-two evenings, or less than 3% of the nights he was on call. Id.
In most months, Plaintiff received no service calls on at least half of the days he was on call. For example, in 2018, there were 24 days in June when Plaintiff received no service calls. ECF 45-5 at 202. In February, April, and November there were 23 days on which he received no service calls; in March there were 22 days on which he received no service calls; and in January and July there were 20 days on which he received no service calls. Id. In the remaining months of 2018, he received no service calls on 16-19 of the days. In 2019, there were twenty-three days in August on which he received no service calls; twenty-one days in January; 20 days in October and November; eighteen days in April, September and December; and sixteen days in March and May on which he received no service calls. Id. In July there were eleven days on which he received no service calls, and he received no service calls on twelve days each in February and June. Id. In 2020, he received no service calls ranging at the high end at twenty-two days in May, with the lowest volume of calls in February, where he had fourteen days with no service calls (in a twentyeight day month). Id. In 2021, he had no service calls on twenty-five, twenty-nine, and thirty of the days, with January and February having twenty-five days of no service calls; March, April and May having thirty days with no service calls; and June with twenty-nine days of no service calls. Id.
4. Whether a fixed time limit for response was unduly restrictive
Again, Plaintiff was required to initially respond to a service request within an hour, and had up six hours to report for urgent calls; that response time was negotiable with the client. Record evidence shows that on at least half of the days of each month, he received no service tickets, and further, not once was he disciplined for failing to meet the response time requirement.
5. Whether the on-call employee could easily trade on-call responsibilities
There is no dispute that Plaintiff was generally the only Omnicell employee in his region. However, Plaintiff admitted in his deposition that there were third-party representatives in Colorado, and that at times he relied on those representatives to help cover his territory. ECF No. 45-1 at 10. He claims he was discouraged at times not to use third-parties, he was never disciplined if he referred a call to the third-party representative, nor does he know of anyone who was. Exhibit A at 72, 74. Plaintiff took at least three weeks off in each of the years 2018, 2019 and 2020. ECF 45-2.
6. Whether use of a pager could ease restrictions
Plaintiff used electronic devices, i.e. his mobile telephone and laptop (rather than a pager, which is often mentioned in the case law) to receive notifications. He testified that he was restricted in where he could go because of the limitations of cell service, however, there is no dispute he could continue to troubleshoot remotely within the call-back time frame, and that when he was out of range of service, he had up to an hour to respond.
7. Whether the employee had actually engaged in personal activities during call-in time
Plaintiff typically went to bed at 8:30 or 9:00 p.m. and would awake around 8:00 a.m. He testified that he could do laundry, watch television, have friends over for dinner, or go to movies and dinner. Ex. A 52-54. He was not given any specific restrictions on what he could or could not do while on call.
B. Application of Factors
After carefully reviewing the record evidence before me, I conclude that summary judgment in favor of Omnicell is necessary. Even the cases cited by Plaintiff do not support his motion. The Tenth Circuit has repeatedly held, in circumstances where the employee faced more limited requirements, that the employees' activities were not so curtailed as to require the on-call time to be considered compensable working time. See Andrews v. Town of Skiatook, 123 F.3d 1327, 1329-30, 1332 (10th Cir. 1997) (involving restrictions such as constant availability by pager, clean and appropriate dress, inability to drink alcohol, and ability to be in the ambulance responding to a call within five to ten minutes); Gilligan, 986 F.2d at 411, 413 (no on-call compensation for water and sewer employees required to wear pager, had inability to drink alcohol, and had ability to report within thirty minutes or one hour of a call); Armitage v. City of Emporia, 982 F.2d 430, 432-33 (10th Cir. 1992) (involving requirements that detectives on call remained sober, could be reached by beeper, and could report to duty within twenty minutes); Norton, 839 F.2d at 654-56 (involving requirement that drivers be able to report to facility within twenty minutes); Boehm, 868 F.2d 1182 (no on-call compensation for power company linesmen who were required to be reachable by telephone and to accept call-outs 1/3 of the time called); Norton, 839 F.2d 653 (no on-call compensation for van drivers required to report within 15-20 minutes, even though on-call time required restrictions on the employee's personal time; restrictions were not so great as to constitute working time).
In addition to these authorities, I have also considered the regulations promulgated by the United States Department of Labor. 29 C.F.R §§ 785.15, 785.16. (employee on duty is “engaged to wait” where “waiting is an integral part of the job” and is “waiting to be engaged” where he is “completely relieved from duty” and where the time period is “long enough to enable him to use the time effectively for his own purposes.”) These regulations, following case law, give certain examples. An employee is engaged to wait, for example, when “[a] stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, fireman who plays checkers while waiting for alarms and a factory worker who talks to his fellow employees while waiting for machinery to be repaired.” 29 C.F.R. 785.15. Nothing in these regulations leads to a different conclusion based on the particular facts and circumstances of this case.
There are prominent exceptions to the line of cases discussed supra, e.g. Pabst v. Okla. Gas & Elec. Co., 228 F.3d 1128, 1134-35 (10th Cir. 2000), and Renfro v. City of Emporia, Kan., 948 F.2d 1529, 1535 (10th Cir. 1991), in which the Tenth Circuit found on-call time compensable. The pivotal factor in those cases, however, was the frequency of callbacks. See Pabst, 228 F.3d at 1134; Renfro, 948 F.2d at 1537-38. In Renfro, the firefighters, although not required to remain on the premises while on call, were required to report to the station within twenty minutes of being called back, were called back as many as thirteen times in one shift, and averaged three to five callbacks per on-call shift. In Renfro, the Tenth Circuit affirmed the district court which found:
[T]he frequency with which Emporia firefighters are subject to call-backs readily distinguishes this case from cases which have held that on-call time is noncompensable. In many of those cases, the probability of an employee being called in, and thus, the probability of disruption of the employee's personal activities, was minimal.Renfro v. City of Emporia, Kansas, 729 F.Supp. 747, 752 (D. Kan. 1990). Here, Plaintiff's time was not spent predominantly for his employer's benefit, and Plaintiff was able to use the time effectively for his own purposes. The frequency of calls was not unduly restrictive, nor was the fixed time limit for his response to the requests. I acknowledge that Plaintiff's time on call somewhat restricted his personal activities, however, the record evidence, even when viewed in the light most favorable to Plaintiff, firmly establishes that his on-call time was not spent predominantly for his employer's benefit. Should a jury be permitted to find that Plaintiff was on duty twenty-four hours a day, seven days a week, 365 days a year? Based on this record, the answer should be no.
C. Remaining Claims
The remaining claims all sound in state law, and I recommend Judge Brimmer decline to exercise jurisdiction over them. See Bauchman v. West High Sch., 132 F.3d 542, 549 (10th Cir. 1997).
CONCLUSION
“Summary judgment is not a disfavored procedural shortcut.” Celotex, 477 U.S. At 327. Instead, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.” Id. Summary judgment is warranted here because Plaintiff provides insufficient facts by which he could reasonably prevail on his causes of action at trial.
Accordingly, based upon the foregoing and the entire record herein, this Court respectfully RECOMMENDS that Plaintiff's Second Motion for Summary Judgment [filed December 14, 2022; ECF 43] be denied, and Defendant's Motion for Summary Judgment [filed December 30, 2022; ECF 45] be granted.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); In re Garcia, 347 F. App=x 381, 382-83 (10th Cir. 2009).
BY THE COURT: