ABB, Inc. (“ABB”) appeals the district court’s 2 partial grant of summary judgment in favor of Cynthia Howser. ABB also appeals from the district court’s order awarding attorneys’ fees and costs to Howser. For the reasons 'that follow, we affirm.
I. BACKGROUND
Cynthia Howser is an hourly employee at ABB’s plant in Jefferson City, Missouri. She has received extensive medical treatment for work-related injuries. On September 3, 2004, Howser left work to attend a doctor’s appointment, which was scheduled during her regular shift. The purpose of the appointment was to re-evaluate her work-related injury. ABB offered to compensate Howser for the time missed from work to attend the appointment, but said it would deduct that time from her accrued paid leave benefits. Instead, Howser opted to take an unpaid excused absence so she would not lose any accrued
The district court granted partial summary judgment 3 in favor of Howser because the undisputed evidence showed that ABB’s worker’s compensation administrator, Gallagher Bassett Services, Inc. (“Gallagher”), scheduled the appointment. According to the district court, Gallagher is ABB’s agent, and therefore ABB was ultimately responsible for directing Howser to attend the appointment. The district court ordered ABB to compensate Howser for the 3.8 hours of time missed and to determine how those additional hours impacted her overtime compensation.
On appeal, ABB claims that Howser failed to present sufficient evidence showing that she attended the September 3 appointment at the direction of the company. Additionally, ABB argues that even if it did set up the appointment through Gallagher, Howser waived her FLSA rights when she chose to take an unpaid excused absence for the time missed. Finally, ABB argues that even if Howser’s FLSA rights are non-waivable, she is not entitled to the full 3.8 hours of time missed.
II. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judgment.
See Turner v. Gonzales,
III. DISCUSSION
A. Whether Howser Attended the Medical Appointment at the Direction of ABB
Under the FLSA, an employer must pay an employee a minimum wage per hour worked. See 29 U.S.C. § 206(a) (2000). Department of Labor regulations state that “[t]ime spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee’s normal working hours on days when he is working constitutes hours worked.” 29 C.F.R. § 785.43 (2007) (emphasis added). ABB argues that it is not required to compensate Howser for the September 3 appointment because there is insufficient evidence to prove that the appointment was made “at the direction” of ABB.
ABB does not present any specific facts to refute Howser’s claim that Gallagher scheduled the appointment. Instead, ABB argues that the above letters contain inadmissible hearsay, and should not have been considered by the district court. However, the statements made by Gallagher in the letters are not hearsay because they are agent admissions. See Fed. R.Evid. 801(d)(2)(D).
Next, ABB argues that it never authorized Gallagher to make an appointment for Howser. It is undisputed that Gallagher is the third-party administrator of ABB’s worker’s compensation claims. (Reed Dep. 15, Appellee’s App. 2; Saak Dep. 32-33, Appellant’s App. 51). According to Beverly Reed, an assistant manager at Gallagher, Gallagher is “an extension” of ABB within the context of worker’s compensation claims. (Reed Dep. 15, Appellee’s App. 2). By virtue of Gallagher’s relationship to ABB, Gallagher is an “employer” under the FLSA. See 29 U.S.C. § 203(d) (an employer includes “any person acting directly or indirectly in the interest of an employer in relation to an employee....”). Additionally, a U.S. Department of Labor opinion letter lends further support to the conclusion that ABB should be bound by the actions of its worker’s compensation administrator. According to the opinion letter, an entity acting on behalf of an employer can bind the employer for purposes of directing medical appointments. The letter explains that “[i]f the employer or the employer’s agent (insurance carrier) arranged for the employee to see a doctor during the employee’s normal working hours, the time spent traveling to and from and visiting the doctor’s office would be compensable hours of work.” 1987 DOLWH LEXIS 30, at *5 (Sept. 10, 1987). Because Gallagher was acting as ABB’s agent when it directed Howser to attend the appointment, ABB must compensate Howser for the time missed.
ABB counters that it has presented specific facts tending to prove that ABB did not instruct Gallagher to schedule any appointments for follow-up treatment for its employees. ABB refers to the deposition testimony of Dena Saak, the plant human resources manager. In the portion of testimony ABB refers to, Saak explains that she was not responsible for hiring Gallagher, and that she is not involved with the scheduling of follow-up appointments. The fact that Saak was unaware of how the appointments were made at Gallagher cer
In sum, ABB failed to present specific facts that show a genuine issue for trial.
See
Fed.R.Civ.P. 56(e)(2) (“When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must-by affidavits or as otherwise provided in this rule-set out specific facts showing a genuine issue for trial.”);
Klein v. McGowan,
B. Waiver of FLSA Rights
ABB argues that even if the time missed for the September 3 appointment constitute hours “worked,” Howser waived those rights when she chose, for whatever reason, to take unpaid leave. It is well established that FLSA rights are statutory and cannot be waived.
See Barrentine v. Arkansas-Best Freight Sys.,
ABB recognizes that employees generally cannot waive their FLSA rights. However, it asks the Court to weigh the bargaining power of the parties in this particular case and find that Howser’s actions constitute a waiver. ABB fails to cite to any case that would permit such a judicially-created exception to the general rule against waiver. We hold that Howser did not waive her right to be compensated for hours “worked” under the FLSA by choosing to take an unpaid excused absence to attend the September 3 appointment.
C. Time Spent at the September 3 Appointment
Finally, ABB disputes the number of hours to which Howser claims she is entitled to compensation. In support of her motion for partial summary judgment, Howser submitted payroll records that reflect a 3.8 hour unpaid absence on September 3, 2004. ABB argues that because
Not only does ABB ignore the fact that Gallagher instructed Howser to arrive at the appointment at least 45 minutes early, it presents no evidence to support its allegation that Howser took more time off from work than she actually needed to attend the appointment. It did not submit any evidence relating to, for example, the distance between the ABB plant and the doctor’s office, what time Howser arrived at the appointment, or how long she actually spent there. 4 As such, ABB failed to create a genuine issue of material fact concerning the amount of time Howser missed while attending the September 3 appointment. 5
IV. CONCLUSION
For the foregoing reasons, the district court’s grant of partial summary judgment in favor of Howser and its order concerning attorneys’ fees and costs are AFFIRMED.
Notes
. The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri.
. This action was originally filed by seven ABB employees. In the proceedings below, ABB filed a motion for summary judgment, which was granted as to all of the plaintiffs except for Howser. At the same time, Howser and the other plaintiffs filed a motion for partial summary judgment on the issue of liability, which was denied in all respects except as to Howser’s September 3 appointment.
See Copeland v. ABB, Inc.,
. In an addendum to its initial brief on appeal, ABB submitted a computer-generated map showing the distance between ABB's plant in Jefferson City and the doctor's office in Columbia. See Appellant’s Addendum A28. This map does not necessarily create a genuine issue of material fact, and in any event, it was not submitted to the district court for consideration.
. ABB claims that even if the appointment were made at the direction of the company, Howser is not entitled to any compensation because "ABB's payment of overtime to its employees is more generous than what the FLSA requires.” Appellant's Br. 23. This argument is waived because ABB did not raise it before the district court.
See Woods v. Perry,