The opinion of the court was delivered by: Richard Mills, District Judge.
Does the FLSA allow employees to sue despite the Secretary's
"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).
Title 29 U.S.C. § 216(b) states in part: