DePriest v. River West LP

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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United States Court of Appeals
Fifth Circuit
F I L E D
June 28, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-30224
Summary Calendar
JEFFREY DEPRIEST,
Plaintiff-Appellant,
versus
RIVER WEST LP, doing business as River West Medical Center
Defendant-Appellee.
Appeal from the United States District Court for
the Middle District of Louisiana
(USDC No. 03-CV-01058)
_________________________________________________________
Before REAVLEY, JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
DePriest appeals the district court’s summary judgment dismissal of his claims for
unpaid wages under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (FSLA) and

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Louisiana state law, LA. REV. STAT. ANN. § 23:631. Reviewing the record under the same
standard as the district court, we affirm for the following reasons:
1. We have recognized that, while an employee’s right to a minimum wage
and to overtime pay under the FSLA cannot be abridged by contract or
otherwise waived, an agreement between the parties is relevant to the issue
of compensability for periods during which an employee is required to be
on-call or standby. Allen v. Atlantic Richfield Co., 724 F.2d 1131, 1135-36
(5th Cir. 1984); C.M. Rousseau v. Teledyne Movible Offshore, Inc., 805
F.2d 1245, 1248 (5th Cir. 1986). Whether on-call time is compensable
working time depends upon the working agreements between the parties
governing on-call work and the degree to which the employee is permitted
or free to engage in personal activities during periods of idleness when he is
subject to call. See 29 C.F.R. § 785.17 (2005); Rousseau, 805 F.2d at
1248. Under the FSLA, an on-call employee is not entitled to “have
substantially the same flexibility or freedom as he would if not on call,” and
is not entitled to payment for on-call time if he is able to use it effectively
for personal purposes, such as eating, sleeping, watching television, or
engaging in other recreational activity. Bright v. Houston Northwest Med.
Ctr. Survivor, Inc., 934 F.2d 671, 676-78 (5th Cir. 1991); Brock v. El Paso
Natural Gas Co., 826 F.2d 369, 370 (5th Cir. 1987).
In this case, DePriest willingly entered into a written agreement for

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work as a weekend radiology technician (RT) under which he would be
compensated at a higher than usual hourly rate for the on-duty daytime
weekend shifts and would be compensated for the nighttime weekend
periods at a reduced on-call hourly rate plus a flat-rate per-procedure fee,
regardless of how long each procedure took. While the parties dispute
whether DePriest was required to stay at the hospital during the on-call
periods, DePriest’s testimony indicated that he was able to engage in other
personal activities during periods of idleness even if he was required to stay
on hospital grounds. See Rousseau, 805 F.2d at 1248 (finding that on-call
time spent by offshore oil derrick barge employees was noncompensable
even though employees were required to remain onboard where employees
were free to engage in leisure pursuits including sleep).
2. Additionally, Department of Labor (DOL) regulations allow unpaid
sleep periods during duty shifts exceeding twenty-four hours so long as
adequate facilities are provided and the employee can get at least five
hours’ sleep during the scheduled period. 29 C.F.R. § 785.22(b) (2005).
The DOL has clarified that the five hours of sleep need not be five
continuous uninterrupted hours of sleep. See Bouchard v. Reg’l Governing
Bd. of Region v. Mental Retardation Servs., 939 F.2d 1323, 1332 (8th Cir.
1991) (citing DOL WH Pub. 1459, “State and Local Government
Employees Under the Fair Labor Standards Act,” May 1985).

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Here, the record reflects that, during the nights of DePriest’s tenure
as the weekend RT for which he provided procedure times, he was afforded
the opportunity to obtain reasonable periods of sleep totaling at least five
and up to eight hours during the scheduled on-call period on all but three or
four occasions. See Roy v. County of Lexington, South Carolina, 141 F.3d
533, 546-47 (4th Cir. 1998) (finding that county emergency medical service
employees were not entitled under FLSA to compensation during eight-hour
sleep periods where, during sample period, only 35% of sleep periods were
interrupted to such extent that employees got less than five hours of sleep).
DePriest was compensated according to the agreement between the parties
for all recorded sleep time interruptions via per-procedure pay. DePriest’s
own testimony reflects that he was afforded adequate sleeping and bathing
facilities as well as ready access to food facilities.
3. While DePriest argues in his brief that River West’s on-call procedure time
analysis relies on estimates and does not include allowances for patient pick
up and drop off, River West’s analysis is based on DePriest’s own
procedure log times. DePriest adduced no proper summary judgment
evidence of record to support his argument that the sleep time interruptions
were understated by River West. See Solo Serve Corp. v. Westowne
Assoc., 929 F.2d 160, 164 (5th Cir. 1991) (holding that only evidence,
rather than argument in a brief or facts alleged in a complaint, will satisfy

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the non-movant’s burden under summary judgment). Accordingly,
although the question of whether waiting time is working time depends on
all the circumstances of the particular case, summary judgment is
appropriate as a matter of law where the material facts are undisputed and
the summary judgment record contains insufficient evidence to support a
finding that on-call time was working time. See Bright, 934 F.2d at 674-75.
4. Because we find that the district court did not err in concluding that
DePriest’s time spent off duty but on call within the confines of the hospital
was noncompensable time under the FSLA, we hold that it was also proper
for the court to dismiss DePriest’s state law claim. Absent a valid claim for
additional compensation for the on-call periods, DePriest has no claim for
wages unpaid upon termination under LA. REV. STAT. ANN. § 23:631.
AFFIRMED.

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