On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 86-651
Sloviter, Greenberg and Cowen, Circuit Judges.
The plaintiff/appellant Irene Townsend, brought suit against The Mercy Hospital of Pittsburgh (Mercy) on her own behalf and on behalf of others similarly situated to recover unpaid overtime compensation pursuant to the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 216(b) (1982). Townsend alleged that Mercy had violated the basic overtime provision of the Act, 29 U.S.C. § 207(a)(1), by failing to pay its operating room technicians and nurses overtime at a rate one and one-half times their regular hourly wage.
After the completion of discovery, Townsend filed a motion for partial summary judgment on the issue of liability, and Mercy filed a cross motion for summary judgment. The district court, adopting the Magistrate's recommendation concluded that Mercy had not violated the FLSA. It therefore granted Mercy's motion for summary judgment and denied Townsend's motion for partial summary judgment.
Townsend appeals. Our review of a grant of summary judgment is plenary.
Townsend states that the "single, narrow issue" on this appeal poses a question of first impression involving what constitutes a "bona fide rate" under the statutory exception to the overtime provisions of the Fair Labor Standards Act. Appellants' Brief at 10. In order to address this legal issue, it is necessary to review the terms and conditions of Townsend's employment at Mercy.
Surgery at Mercy is normally scheduled between 7 a.m. and 5.30 p.m. Monday through Friday, and the operating rooms are covered during that period by two regular weekday shifts. In addition, the hospital set up overtime shifts known as "on-premises-on-call" shifts to provide guaranteed staffing for off-hours emergency surgery.
During the regular shifts, the operating room personnel perform tasks such as preparing and maintaining operating rooms and assisting in medical procedures, for which they are compensated at their regular rate. On the other hand, when they are assigned to the on-premises-on-call shifts, they are required to stay on hospital premises, but are not on active duty until called. The on-premises-on-call shifts are thus divided between waiting periods and active periods which vary according to the need for off-hours surgical procedures.
Townsend was hired with the understanding that her work week would consist of five regular eight hour shifts and one overtime shift. During her active periods on her overtime shift, Townsend performed the same tasks for which she was responsible during her regular shifts and was paid one and one-half times her regular shift rate for all work performed. During waiting periods on that shift, Townsend had no assigned duties and was free to eat, sleep, smoke, read, watch television or otherwise occupy herself, provided she remained on premises in readiness for active duty. She was paid one and one-half times the federal minimum wage for these waiting periods.*fn1 The basis for this lawsuit is Townsend's contention that utilization of the federal minimum wage rate as the base rate for overtime waiting periods violates the overtime pay provisions of the FLSA.
The parties do not raise any factual issues on this appeal. Section 7(a)(1) of the FLSA requires that an employee who works more than forty hours a week shall receive compensation for the additional hours "at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1) (1982). Patently, the payment to appellants for the waiting periods ...