Whitten v. City of Easley ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STAN WHITTEN; TONY DEADWYLER; 
KEVIN NALLEY,
Plaintiffs-Appellants,
v.  No. 02-1445
THE CITY OF EASLEY, SOUTH
CAROLINA,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Henry M. Herlong, Jr., District Judge.
(CA-01-979-8-20)
Argued: January 22, 2003
Decided: April 9, 2003
Before WIDENER and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Thomas Bailey Smith, SMITH LAW FIRM, PA, Easley,
South Carolina, for Appellants. Christina Marie Summer, GIGNIL-
LIAT, SAVITZ & BETTIS, L.L.P., Columbia, South Carolina, for
Appellee. ON BRIEF: Kathryn Thomas, GIGNILLIAT, SAVITZ &
BETTIS, L.L.P., Columbia, South Carolina, for Appellee.
2 WHITTEN v. THE CITY OF EASLEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Firefighters Stan Whitten, Tony Deadwyler, and Kevin Nalley filed
a lawsuit against their former employer, the City of Easley, South
Carolina, alleging that the City violated the Fair Labor Standards Act
(the "FLSA"), 29 U.S.C. § 201, et seq., by failing to pay them over-
time for their "on call" hours. Whitten and Deadwyler also brought
FLSA retaliation claims against the City of Easely. The district court
granted summary judgment in favor of the City on both grounds, and
this appeal followed. For the reasons that follow, we affirm.
I.
As firefighters for the City of Easley, Whitten, Nalley, and Dead-
wyler were required to work 24 and 48 hour shifts. For 365 days a
year, City of Easley firefighters worked one 24 hour "on duty" shift
followed by a 48 hour "on call" shift. During their "on call" days, the
City encouraged firefighters to respond to 80% of second alarm calls.
From January 1998 to July 2001, the City Fire Department received
an average of 6 second-alarm calls per month, and thus, the City
encouraged firefighters to respond to at least 4 second-alarm calls
during the 18-19 days a month firefighters were "on call." However,
the majority of firefighters, including Whitten, Deadwyler, and Nal-
ley, rarely met this quota.
In order to facilitate quick responses to second-alarm calls, the City
issued pagers to "on call" firefighters, which notified the "on call"
employees of the location of the second-alarm call. In addition to pag-
ers, the City also issued two-way radios and turn-out gear to fire-
fighters; however, most firefighters relied on their pagers to notify
them of second-alarm calls. Their ability to rely on the pagers to
notify them of second-alarm calls allowed firefighters to pursue per-
sonal activities during their "on call" shifts. During "on call" days,
WHITTEN v. THE CITY OF EASLEY 3
firefighters maintained part-time jobs, traveled to different states,
went shopping, ate in restaurants and drank in bars, and pursued their
personal hobbies and interests. In the event that a firefighter needed
to take a day off when he or she was scheduled to be "on call," the
Fire Department permitted firefighters to trade shifts with other fire-
fighters.
In April 2001, Whitten, Deadwyler, and Nalley filed a complaint
against the City of Easley, alleging, inter alia, that the City had failed
to pay them overtime for their "on call" shifts. Whitten and Dead-
wyler also asserted FLSA retaliation claims. Whitten’s FLSA retalia-
tion claim is predicated in part on his belief that he was discharged
in January 2001 for complaining about the City’s failure to pay over-
time for "on call" hours. Deadwyler’s FLSA retaliation claim is based
on his allegation that the City of Easley terminated him in July 2001
for filing this lawsuit and failing to divulge information about the
lawsuit to the Chief of the City of Easley Fire Department.
In a written opinion filed April 2, 2002, the district court granted
summary judgment for the City of Easley. In its opinion, the district
court concluded that the City had not violated the FLSA by failing to
pay Whitten, Deadwyler, and Nalley for their "on call" shifts. The dis-
trict court also determined that Whitten’s FLSA retaliation claim
failed to establish a prima facie case. Lastly, the district court held
that Deadwyler’s acceptance of full-time employment with another
company constituted a voluntary resignation from his position with
the City of Easley Fire Department, and therefore, his FLSA retalia-
tion claim also failed. Whitten, Deadwyler, and Nalley now appeal
the district court’s decision.
II.
We review the district court’s grant of summary judgment de novo,
viewing all the facts and inferences in the light most favorable to the
nonmoving party. Haulbrook v. Michelin N. Am., 225 F.3d 696, 702
(4th Cir. 2001). Summary judgment is appropriate if "there is no gen-
uine issue of fact as to any material fact and . . . the moving party is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
4 WHITTEN v. THE CITY OF EASLEY
III.
There are two issues that we must decide in this appeal. First, this
Court must determine whether the City of Easley failed to compensate
properly its firefighters for "on call" time. Second, we must assess
whether Whitten and Deadwyler have adequately alleged FLSA retal-
iation claims. For the reasons that follow, we conclude that the district
court’s grant of summary judgment to the City of Easley was proper
on all grounds.
A.
The first issue is whether the firefighters’ "on call" time is compen-
sable under the FLSA. In order to determine "[w]hether time is spent
predominantly for the employer’s benefit or for the employee’s," Roy
v. County of Lexington, 141 F.3d 533, 544 (4th Cir. 1998), this Court
must examine the following factors to weigh the level of interference
with the employee’s private life: (1) whether the employee may carry
a beeper or leave home; (2) the frequency of calls and the nature of
the employer’s demands; (3) the employee’s ability to maintain a
flexible "on call" schedule and switch "on call" shifts; and (4) whether
the employee actually engaged in personal activities during "on call"
time. See Kelly v. Hines-Rinaldi Funeral Home, Inc., 847 F.2d 147,
148 (4th Cir. 1998); Ingram v. County of Buck, 144 F.3d 265, 268 (3d
Cir. 1998). As the Supreme Court has explained, "Facts may show
that the employee was engaged to wait, or they may show that he
waited to be engaged." Skidmore v. Swift & Co., 323 U.S. 134, 136-
37 (1944). If the employee was "engaged to wait," his or her "on call"
time is compensable under the FLSA. See id. However, if the
employee was "waiting to be engaged," the FLSA does not require
employers to compensate its employees for this time. After reviewing
the record evidence, this Court concludes that the City of Easley fire-
fighters spent their "on call" time predominantly for their own benefit
and therefore the time the firefighters spent "waiting to be engaged"
is not compensable under the FLSA.
First, the firefighters carry pagers during their "on call" shifts to
notify them of second-alarm calls, which enables them to pursue per-
sonal activities during those days. To this point, both Deadwyler and
Nalley testified that they carried pagers and were able to travel out of
WHITTEN v. THE CITY OF EASLEY 5
state to attend non-work related conferences as well as work part-time
for other organizations during their "on call" shifts. Second, this Court
would be hard pressed to conclude that the fire department’s policy
of encouraging firefighters to respond to 80% of second-alarm calls
during their "on call" shifts is overly burdensome. The second-alarm
call records from 1998-2001 indicate that "on call" firefighters
received an average of 6 second-alarm calls per month. Of those 6
second-alarm calls, the City encouraged firefighters to respond to 4
second-alarm calls during the 18-19 days the firefighters were "on
call." Because the 80% response rate was encouraged and not
required, the majority of firefighters rarely met this quota. In fact,
City of Easley firefighters, including Whitten, Deadwyler, and Nalley,
rarely responded to 80% of the second-alarm calls in any given
month. Given that the firefighters were generally unencumbered dur-
ing their "on call" shifts, the requirement that they respond to at least
4 of 6 second-alarm calls per month is not overly burdensome. Cf.
Renfro v. City of Emporia, 948 F.2d 1529, 1531 (10th Cir. 1991)
(finding that firefighters were "engaged to wait" when they received
on average four to five call-backs per day). Third, numerous courts
have held that an employee’s ability to trade shifts weighs against a
finding that their "on call" time is unduly restrictive. See Ingram, 144
F.3d at 269. Here, it is undisputed that City of Easley firefighters may
trade "on call" shifts with other firefighters. Because the firefighters’
ability to trade shifts enables them to maintain a flexible "on call"
schedule, this Court cannot conclude that the "on call" hours are oner-
ous. Lastly, firefighters employed by the City of Easley are able to
engage in personal activities during "on call" shifts with minimal
interference. Contrary to appellants’ assertions, "the test is not
whether the employee has substantially the same flexibility or free-
dom he would if not on call," Ingram, 144 F.3d at 269, but rather
"whether they may actually engage in personal activities during ‘on
call’ shifts." Berry v. County of Sonoma, 30 F.3d 1174, 1184-85 (9th
Cir. 1994). Here, the record is replete with evidence of appellants’
freedom to enjoy personal activities such as dining, shopping, imbib-
ing, traveling to out-of-state competitions, working in part-time jobs,
and enjoying personal pursuits. Because the "on call" policy did not
substantially impinge upon the firefighters’ personal pursuits, this
Court concludes that Whitten, Deadwyler, and Nalley are not entitled
to compensation for their "on call" hours under the FLSA.
6 WHITTEN v. THE CITY OF EASLEY
B.
Whitten and Deadwyler next contend that the City of Easley vio-
lated the FLSA by terminating them for engaging in protected activi-
ties. In order to assert a prima facie claim of retaliation under the
FLSA, a plaintiff must prove: (1) that he or she engaged in an activity
protected by the FLSA; (2) that he or she suffered adverse action by
the employer subsequent to or contemporaneous with such protected
activity; and (3) a causal connection existed between the employee’s
activity and the employer’s adverse action. See Conner v. Schnuck
Markets, Inc., 121 F.3d 1390, 1394 (10th Cir. 1997). If the employee
establishes a prima facie claim of retaliation, the employer must pro-
vide a legitimate reason for the adverse action. Id. Once the employer
sets forth a non-discriminatory reason for its adverse reaction, the
plaintiff may attempt to demonstrate the pretextual nature of the
explanation proffered. See id. at 1394. Guided by the principles set
forth above, it is clear that neither Whitten nor Deadwyler has satis-
fied his burden under the FLSA.
Whitten has failed to prove the first prong of the FLSA’s prima
facie case. To wit, Whitten cannot demonstrate that he was engaged
in an activity protected by the FLSA. Whitten claims that the City of
Easley discharged him because he complained to management that
the fire department’s failure to pay firefighters for their "on call" time
was unlawful. However, this Court has expressly held that the
FLSA’s anti-retaliation provision does not extend to internal com-
plaints. See Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360, 364
(4th Cir. 2000) ("We would be unfaithful to the language of the testi-
mony clause of the FLSA’s anti-retaliation provision if we were to
expand its applicability to intra-company complaints. . . ."). Further-
more, the City terminated Whitten in January 2001, approximately
three months before plaintiffs filed this lawsuit. Therefore, Whitten
cannot demonstrate that he suffered an adverse action "subsequent to
or contemporaneous with" the filing of this complaint. See Conner,
121 F.3d at 1394. Thus, because Whitten cannot satisfy his prima
facie burden under the FLSA, his claim fails.
Although Deadwyler satisfies his prima facie burden under the
FLSA because he alleges that "he was first suspended and then fired
for failing to divulge information related to this case," he cannot dem-
WHITTEN v. THE CITY OF EASLEY 7
onstrate that the City of Easley’s non-discriminatory reason for termi-
nating him was pretextual. The City of Easley claims that it
discharged Deadwyler after it learned that Deadwyler had accepted a
full-time position with another company, thereby effectively tender-
ing his resignation from his position as a City of Easley firefighter.
As the district court aptly noted, "[a]ccepting a voluntary resignation
for what appears to be the acceptance of another full time job cannot
be considered a discharge in retaliation for protected FLSA retalia-
tion." Whitten v. City of Easley, Ca. No. 8:01-0979-20, at 8 (D.S.C.
filed April 3, 2002). Accordingly, this Court concludes that Dead-
wyler has failed to satisfy his burden under the FLSA.
IV.
In conclusion, Whitten, Deadwyler, and Nalley have failed to dem-
onstrate that they are entitled to compensation under the FLSA for
their "on call" hours. Indeed, the FLSA does not require the City of
Easley to compensate its firefighters for time spent "waiting to be
engaged." Whitten and Deadwyler, furthermore, have not successfully
proved their FLSA retaliation claims. Accordingly, for the reasons
stated herein, we affirm the district court’s grant of summary judg-
ment to the City of Easley.
AFFIRMED