F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                   November 24, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    SUSAN KNAPP, an individual,

          Plaintiff-Appellant,

    v.                                                  No. 05-4322
                                                 (D.C. No. 2:01-CV-793-TC)
    AM ERICA W EST A IRLINES,                             (D. Utah)
    a Delaware corporation,

          Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before O ’B RIE N and BROR BY, Circuit Judges, and BRO W N, ** District Judge.




         Susan Knapp appeals the district court’s grant of summary judgment to

America W est A irlines on M rs. K napp’s claims alleging violations of the Family




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
       The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.
and M edical Leave Act (FM LA), 29 U.S.C. §§ 2601-2654. W e have jurisdiction

under 28 U.S.C. § 1291, and we AFFIRM .

                                          I.

      M rs. Knapp was a pilot for America West. In 1995, she and her husband

noticed that their eldest son, born in 1986, displayed symptoms of fetal distress

syndrome, including vision problems. In 1995, 1996, 1997, and 1998,

M rs. Knapp made periodic requests under the FM LA and America W est’s

personal leave policy for leave to take her son to various health care providers

and to provide at-home vision therapy.

      In 1999, M rs. K napp began making more frequent FM LA leave requests to

provide her son with more intensive treatment. In the fall of 1999, she requested

intermittent leave for October 13, 14, and 15, October 28 and 29, and November

5, 6, 12, and 13. On October 12, America W est granted leave for O ctober 13-15.

It later denied the other FM LA leave requests, as well as additional FM LA leave

requests for February and July 2000. As it turned out, on November 5, 1999,

M rs. Knapp flew several scheduled flight legs, then called in sick because she

could not continue due to her own medical condition. Thereafter, she was on

medical leave as her condition did not permit her to fly. Ultimately, M rs. Knapp

left America West’s employ in August 2000.

      In 2001, M rs. K napp brought suit for violation of her FM LA leave rights

for the denials of leave to care for her son. The district court held M rs. Knapp

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was not eligible for FM LA leave because she had not accrued at least 1,250 hours

of service in the twelve months prior to the requested leave. See 29 U.S.C.

§ 2611(2)(A)(ii); 29 C.F.R. § 825.110(a)(2). Specifically, the court evaluated

four categories of alleged working time: active-duty time, training time, layover

time, and reserve-duty time. It held that active-duty and training time counted as

hours worked, and assumed the same for layover hours, for a total of

approximately 764 hours. It further held, though, that M rs. K napp’s reserve-duty

time did not count as hours of service. W ithout the reserve-duty time,

M rs. Knapp did not meet the 1,250-hour threshold, so the district court denied

M rs. Knapp’s motion for partial summary judgment and granted summary

judgment to America W est. M rs. Knapp appeals. W e review a grant of summary

judgment de novo. Jones v. Denver Pub. Schs., 

, 1318 (10th Cir.

2005).

                                           II.

         The parties disagree on M rs. Knapp’s total hours of service in the twelve

months preceding her leave requests, with America West claiming she should be

credited with approximately 440 hours and M rs. Knapp claiming she had over

1,900 hours. For purposes of this appeal, though, the determinative question is

whether M rs. Knapp’s reserve duty time should be counted as hours of service.

         “W hether an employee has w orked the minimum 1,250 hours of service is

determined according to the principles established under the Fair Labor Standards

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Act (FLSA) for determining compensable hours of work.” 29 C.F.R.

§ 825.110(c). Under the FLSA , “[w]hether waiting time is time worked under the

Act depends on particular circumstances. . . . ‘Facts may show that the employee

was engaged to wait or they may show that he waited to be engaged.’” 

(quoting Skidmore v. Swift & Co., 323 U .S. 134, 137 (1944)). The test

is whether the time is spent predominantly for the employer’s benefit or for the

employee’s. 

; Armour & Co. v. Wantock, 

,

133 (1944). Relevant factors include “consideration of the agreement between the

parties, the nature and extent of the restrictions, the relationship between the

services rendered and the on-call time, and all surrounding circumstances.”

Boehm v. Kan. City Power & Light Co., 

, 1185 (10th Cir. 1989)

(citing 

); see also 29 C.F.R. § 785.14. W here, as here,

the employee is not required to remain on the employer’s premises, the critical

inquiry is w hether the employee is able to use the time effectively for her own

purposes. Renfro v. City of Emporia, 

, 1537 (10th Cir. 1991);

29 C.F.R. § 785.17.

      M rs. Knapp initially contends that this case is not appropriate for summary

judgment because the question of how she spent her reserve time is a question of

fact. W hile 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, “w hether limitations on the employees’ personal activities w hile

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on-call are such that on-call waiting time would be considered compensable

overtim e under the FLSA is a question of law which we review de novo.” Berry

v. C ounty of Sonom a, 

, 1180 (9th Cir. 1994); see also Birdwell v.

City of Gadsden, 

, 808 (11th Cir. 1992) (“It is for the court to

determine if a set of facts, if found by a fact finder, will give rise to liability

under the FLSA while other sets of facts will not.”). Here, it was M rs. Knapp’s

burden to “set forth specific facts showing there is a genuine issue for trial.” Fed.

R. Civ. P. 56(e). She could have produced additional evidence concerning the

restrictions on her activities during reserve-duty hours, but instead her arguments

generally focused on the factors discussed by the district court – the prohibition

on drinking alcohol and the requirements to answ er the telephone and to be able

to report to the airport within one hour. W e hold that summary judgment is not

inappropriate on this record. See also 

(in granting

summary judgment, district court made no factual findings, but relied on

undisputed facts); Gilligan v. City of Emporia, 

, 413 (10th Cir. 1993)

(affirming grant of summary judgment to employer).

       Viewed in the light most favorable to M rs. Knapp, the record shows that

when M rs. Knapp was on reserve, she could not drink alcohol, she had to be

available by and answer the telephone, and she had to be able to report to the

airport within one hour of being called. She could be at home (or apparently

anywhere else she was reachable by telephone), so long as she could answ er a call

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and then report to the airport within one hour. The report requirement, however,

necessarily entailed being able to dress in uniform, travel to the airport, park, and

pass through security within one hour of a call. During her deposition, she

testified that she could not drink alcohol, scuba dive, make or attend doctors’

appointments, go on field trips with her children, or make appointments for her

children. Aplt. App. at 207. On appeal, she contends that the restrictions

effectively curtailed her personal pursuits: “throughout her ‘reserve’ duty

assignments she had to be continually prepared to immediately drop everything,

in order to accomplish all of the things [necessary to report] and still be able to

report for duty within one hour.” Aplt. Br. at 23. Thus, “[s]he could not go play

nine holes of golf, she could not go to the movies, she could not do her weekly

grocery shopping, she could not get her hair or nails done, she could not do

anything that would preclude her from immediately dropping everything in order

to meet the one-hour callout . . . .” 

cases presenting similar, or even more restrictive, circumstances

than in this case, this court has held 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, 

, 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); 

, 413

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(involving restrictions such as constant availability by pager, inability to drink

alcohol, and ability to report within thirty minutes or one hour of a call);

Arm itage v. City of Emporia, 

, 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 v. Worthen Van Serv.,

Inc., 

, 654-56 (10th Cir. 1988) (involving requirement that drivers be

able to report to facility within twenty minutes). This precedent indicates that

M rs. Knapp’s reserve-duty time was not hours of service for purposes of

determining FM LA eligibility. The prominent exceptions are Pabst v. Oklahom a

Gas & Electric Co., 

, 1134-35 (10th Cir. 2000), and 

, in which this court found on-call time compensable. The

pivotal factor of those cases, however, w as the frequency of callbacks. See 

; 

. The record does not show

whether M rs. Knapp received frequent calls during her reserve-duty periods, but

she does not argue this issue.

      M rs. Knapp points to her employment contract, in w hich America W est

agreed to pay her a guaranteed minimum for reserve-duty time, and argues that

because she actually was compensated for reserve-duty time, such hours must

count as hours of service for FM LA purposes. See 29 C.F.R. § 785.14 (providing

that the agreements between the parties are relevant to determining whether

waiting time is time worked under the FLSA). Compensation is but one factor to

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be considered, however, and it does not necessarily require on-call time to be

considered hours worked. See 

(detectives on call

were paid $30 per week plus overtime for time actually worked, yet the court held

their on-call time was not compensable under the FLSA); see also Paniagua v.

City of Galveston, 

, 1317 (5th Cir. 1993) (stating that the city’s

agreement to pay employee certain amount of overtime pay for standby time did

not alter the court’s conclusion that the time was not compensable under the

FLSA). All the circumstances are to be considered, and as discussed above, here

the circumstances indicate that M rs. Knapp’s reserve-duty time should not count

as hours of service for FM LA eligibility.

      M rs. Knapp also relies on 29 C.F.R. § 825.110(d), which provides that

having confirmed an employee’s eligibility for FM LA leave, an employer may not

retroactively claim that an employee was not FM LA-eligible. Several circuit

courts, however, have invalidated § 825.110(d) as contradictory to the plain terms

of the FM LA, as it aw ards FM LA leave to employees w ho do not statutorily

qualify for FM LA protection. See Woodford v. Commun. Action of Greene

County, Inc., 

, 56-57 (2d Cir. 2001); Brungart v. BellSouth

Telecomms., Inc., 

, 797 (11th Cir. 2000); Dormeyer v. Comerica

Bank-Illinois, 

, 582-83 (7th Cir. 2000). W e agree with these courts’

criticisms of § 825.110(d), and thus we decline to apply it in this case.




                                          -8-
                                       III.

      M rs. Knapp’s reserve-duty hours did not qualify as hours of service for

purposes of determining her eligibility for FM LA leave, and thus the judgment of

the district court is A FFIR ME D.



                                                   Entered for the Court


                                                   W ade Brorby
                                                   Circuit Judge




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