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FLOYD v. EXCEL CORPORATION

June 10, 1999

MARILYN FLOYD, THOMAS IRELAND, JAMES L. LAMASTER, LEKHA MAYES, DALE M. SHEEHAN, JR. CAROL TRINKLE, ON THEIR OWN BEHALF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
EXCEL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge.

OPINION

Secretary of Labor files a suit against Excel to enjoin violations of the FLSA, and two weeks thereafter, Excel's employees file suit under § 216(b) for unpaid wages.

Does the FLSA allow employees to sue despite the Secretary's antecedent suit?

"Difference" may make all the difference.

Summary judgment denied in part.

I. Background and Procedural History

Plaintiffs are employees of the Defendant Excel Corporation ("Excel") at its Beardstown, Illinois, facility. On July 29, 1998, Plaintiffs, on behalf of themselves and other employees who have filed and will file consents to join, filed this action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), for unpaid wages and overtime pay. In their Complaint, they allege that Excel violated §§ 206 and 207 of the FLSA by failing to pay for certain compensable work they performed and that Excel violated §§ 211(c) and 215(a)(5) by falling to keep adequate employment records. Approximately two weeks prior to Plaintiffs' filing this action, the Secretary of Labor ("Secretary") filed an action against Excel under § 217 seeking to enjoin violations of the FLSA at its Beardstown facility. That case, Alexis M. Herman, Secretary of Labor, United States Department of Labor v. Excel Co., 37 F. Supp.2d 1117 (C.D.Ill. 1999) ("Herman"), is also currently pending before this Court. In Herman, the Secretary alleged that since March 10, 1998, Excel failed to compensate its employees for work done in excess of forty hours per week. The Secretary further alleged that Excel failed to keep adequate employment records in violation of § 211(c) of the FLSA.

After discovering the existence of the Secretary's suit, Excel filed this motion to dismiss, or in the alternative, to obtain summary judgment on Plaintiffs' suit. In its Motion, Excel argues that under § 216(b), the Secretary's antecedent suit precludes Plaintiffs from filing a private suit.

II. Standard for Summary Judgment*fn1

Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavit, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c); see Ruiz-Rivera v. Moyer; 70 F.3d 498, 500-01 (7th Cir. 1995). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed, 2d 265 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether a genuine issue of material fact exists, the Court must consider the evidence in the light most favorable to the nonmoving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. See Howland v. Kilquist, 833 F.2d 639 (7th Cir. 1987).

III. Analysis

Title 29 U.S.C. § 216(b) states in part:

    Any employer who violates the provisions
  of section 206 or section 207 of this
  title shall be liable to the employee or
  employees affected in the amount of

  their unpaid minimum wages, or their
  unpaid overtime compensation, as the
  case ...

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