United States District Court, Central District of Illinois, Springfield Division
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,
EXCEL CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Richard Mills, District Judge.
Secretary of Labor files a suit against Excel to enjoin
violations of the FLSA, and two weeks thereafter, Excel's
file suit under § 216(b) for unpaid wages.
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:
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 may be, and in an additional equal
amount as liquidated damages.
The right provided by this subsection to
bring an action by or on behalf of any
employee, and the right of any employee
to become a party plaintiff to any such
action, shall terminate upon the filing of
a complaint by the Secretary of Labor in
an action under section 217 of this title
in which (1) restraint is sought of any
further delay in the prepayment of unpaid
minimum wages, or the amount of
unpaid overtime compensation, as the
case may be, owing to such employee
under section 206 or section 207 of this
title by an employer liable therefor under
the provisions of this subsection or
(2) legal or equitable relief is sought as a
result of alleged violations of section
215(a)(3) of this title.
Defendant argues that under the "clear language" of the
statute, employees can file private lawsuits up until the
Secretary brings an action under § 217 to enjoin the illegal
practice. Accordingly, Defendant argues that since the Secretary
filed a lawsuit against Defendant before Plaintiffs filed their
suit, Plaintiffs' action should be dismissed.
In contrast, Plaintiffs argue that their suit should not be
dismissed because their suit is different from the Secretary's
suit. They argue that the Secretary's suit only seeks relief for
violations for a period commencing March 10, 1998, whereas, their
suit seeks relief for FLSA violations occurring prior to and
including the period after March 10, 1998.*fn2 In addition,
Plaintiffs argue that dismissing this suit would frustrate the
congressional intent to protect workers.
If Plaintiffs' suit is identical to the Secretary's suit, the
statutory language in § 216(b) dictates that the Court
dismiss Plaintiffs' subsequently filed suit. See, e.g., E.E.O.C.
v. Madison Comm. Unit. Sch. Dist. No. 12, 818 F.2d 577, 589 (7th
Cir. 1987) (Posner, J.) (Stating that language in § 216(b)
"could not be clearer" in order to disallow attorney's fees to
plaintiffs who intervened in the Secretary's suit). However, the
statute appears to be ambiguous as to whether § 216(b)
precludes a subsequently filed private suit that is different
from the Secretary's suit. If the Court were to read the statute
extremely broadly, the statute would preclude all and any private
suits that are filed after the Secretary's suit, regardless of
the subsequent suit's substantive and temporal basis. For
example, suppose an employer has violated several different
provisions of ELSA on several different occasions. If the
Secretary decides to bring suit under § 217 regarding only
one violation — either due to lack of knowledge of other
violations or through an exercise of discretion — the other
violations could never be adjudicated because the defendant's
employees would be precluded from pursuing private suits to
enforce the FLSA. Given that the statute was designed for
remedial purposes, it is unlikely that Congress intended such a
The legislative history seems to suggest that the "termination
of rights" provision was designed only to apply to subsequent
private suits that are identical to the previously filed
Secretary's suit. As noted in the Senate report, the "termination
of rights" provision was enacted to "relieve the courts and
employers of the burden of litigating a multiplicity of suits
the same violations of the act by an employer." Sen. Rep. No.
145, 87th Cong., 1st Sess., reprinted in 1961 U.S.C.C.A.N. 1620,
1659 [emphasis added]. A priori, when the subsequent claim is
different from the Secretary's suit, § 216(b) does not
necessarily terminate the employees' right to sue for a different
claim, even when they file their claim after the Secretary brings
suit. Thus, the Court holds that a suit filed by the Secretary
bars a subsequently filed private suit under § 216(b) to the
extent that the suits allege the same claims under the FLSA.
Having so decided, the Court must now determine whether or not
Plaintiffs' suit alleges the identical violation as the
The Herman complaint alleges that since March 10, 1998,
Defendant failed to compensate workers for hours worked in excess
of forty hours and failed to include compensable activities
during lunch hours and before and after "gang time." In addition,
the Secretary alleged that Defendant failed to keep adequate
The Complaint in this case alleges that Defendant failed to pay
"regular rates" up to forty hours and for overtime pay in excess
of forty hours.*fn4 Also, the Complaint alleges that Defendant
failed to maintain adequate employment records.*fn5 Unlike the
Secretary's complaint, Plaintiffs' Complaint does not specify a
time period in which Defendant committed the alleged violations.
This difference is critical to the resolution of this motion
because under the relevant statute of limitations, Plaintiffs can
recover for violations up to two years prior to the day
Plaintiffs filed this suit. See 29 U.S.C. § 254(a). The
limitations period is increased to three years if the violations
were willful. Id.
Obviously, Plaintiffs' Complaint includes the violations of the
FLSA that occurred from March 10, 1998, as alleged in the
Secretary's complaint and the alleged violations that occurred
prior to March 10, 1998. Thus, to the extent the Plaintiffs seek
relief from Defendant's FLSA violations that occurred prior to
March 10, 1998, their suit is different from the Secretary's suit
in Herman. Conversely, to the extent that Plaintiffs' Complaint
overlaps with the Secretary's antecedent complaint, Plaintiffs'
claims should be dismissed.
Last but not least, the cases cited by Defendant merit some
discussion. First, Defendant cites Donovan v. University of Texas
at El Paso, 643 F.2d 1201 (5th Cir. 1981) and E.E.O.C. v.
Wackenhut, 939 F.2d 241 (5th Cir. 1991) as support for its
position. These cases are, however, inapposite. Although the
Fifth Circuit discusses § 216(b) as dicta in its opinions,
neither case addresses the issue at bar. In Donovan, the sole
issue before the court was whether the Secretary's suits under
§ 17 (§ 217) are subject to the class action rules of
Fed.R.Civ.P. 23. See Donovan, 643 F.2d at 1203. Moreover, in
Wackenhut, the issue was whether a private § 216(b) suit bars
the Secretary from subsequently filing a duplicative suit. See
Wackenhut, 939 F.2d at 242. Due to the difference in the issues
addressed, the Court finds these cases unpersuasive.
Defendant also cites Jones v. American Window Cleaning Corp.,
210 F. Supp. 921
(E.D.Va. 1962). In Jones, the Court dismissed a private
employee's suit that was brought ten days after the
Secretary's suit. Id. at 924. Implicit in the ruling, however, is
that the lawsuits covered identical violations of the FLSA by the
same defendant. The case is silent on whether a subsequent
lawsuit that is different from the Secretary's suit should be
precluded under § 216(b). Thus, the Court finds that Jones
does not dispose of the case at bar.
In addition, Defendant relies heavily on Bureerong v. Uvawas,
922 F. Supp. 1450 (C.D.Cal. 1996) in its brief. The case,
however, does not support. Defendant's argument. In Bureerong,
one of the issues was whether private employees were precluded
from suing some of the defendants, when the Secretary previously
filed a suit against other named defendants. See Bureerong, 922
F. Supp. at 1461-65. After examining the legislative history, the
court held that the "termination provision" in § 216(b) was
"employer-specific." Id. at 1467. In other words, the court found
that because the Secretary can strategically decline to sue
certain defendants, § 216(b) did not preclude the employees
from suing other defendants even if the private suit was filed
after the Secretary's suit.
Defendant attempts to distinguish Bureerong by arguing that
unlike the Bureerong case, the case at bar concerns only one
defendant. The Court, however, finds this argument unpersuasive
because that argument ignores the policy reasons behind the
Bureerong court's ruling. That court found that preventing the
plaintiffs from seeking compensation against a co-defendant would
frustrate Congress' intent to provide labor protection. The
Bureerong court articulated the congressional intent behind the
FLSA into three basic purposes:
1. that the sections are designed to ensure that
individuals will be compensated for their work;
2. that the enforcement prevents employers
from gaining an unfair advantage against
competitors by wrongfully
withholding compensation; and
3. that the enforcement provision deters
Bureerong, 922 F. Supp. at 1466. After weighing these factors,
the court interpreted § 216(b) to he "employer-specific" and,
thus, allowed plaintiffs' suit to proceed.
After applying these factors to this case, the Court finds that
the "termination provision" in § 216(b) should be
"claim-specific." Disallowing Plaintiffs to sue would prevent them from
receiving full compensation. In turn, paying less wages through a
violation of law would give an unfair advantage to Defendant.
Moreover, preventing Plaintiffs from suing would not maximize the
deterrent effect of the statute. In fact, if the Court assumes
numerous violations and an extended time frame that are not
alleged in the Secretary's complaint, Defendant could
hypothetically profit from its misconduct. Accordingly, the Court
finds that these factors weigh in favor of allowing Plaintiffs'
suit to proceed.
The Court is also mindful of the reasons why Congress enacted
the. "termination provision." Ineffectiveness of private
enforcement and the Secretary's lack of power, to enforce the
FLSA prior to 1961 prompted Congress to empower the Secretary and
to shift the primary reliance of private enforcement of the FLSA
to the Secretary. See Hodgson v. Wheaton Glass Co., 446 F.2d 527,
535 (3d Cir. 1971); 1961 U.S.C.C.A.N. at 1658. Also, the
provision was to limit multiplicity of suits for the same
violation and to reduce the possibility of inconsistent
adjudications. See Donovan v. University of Texas at El Paso,
643 F.2d 1201, 1207 (5th Cir. 1981); see also, 1961 U.S.C.C.A.N. at
Even when these considerations are taken into account, the
Court finds that its interpretation of § 216(b) is
reasonable. Although a private plaintiffs suit is secondary to
the Secretary's suit under the statutory scheme, the Court finds
it unlikely that Congress intended to vitiate
private employees' entitlement to unpaid wages, especially when
the Secretary's interest in filing the suit — e.g.,
deterrence — may be different from that of the employees.
However, this would be the case when the Secretary only seeks
relief for some, and not all, of the claims. Thus, precluding
Plaintiffs from suing for their entitlements that are not
represented by the Secretary would "frustrat[e] the basic purpose
behind the FLSA." Bureerong v. Uvawas, 922 F. Supp. 1450, 1466
Moreover, since the two cases deal with alleged violations that
occurred during two different times, the risk of inconsistent
adjudications is minimal. In addition, if the Court consolidates
the two cases, the risk of duplication of effort is also
In sum, the substance of the complaints, and not so much the
filing dates, should dictate whether the Secretary's suit
precludes Plaintiffs from filing a subsequent suit asserting a
different claim. Per supra, the Court finds that the "termination
provision" in § 216(b) is "claim-specific" and holds that the
filing of the Herman case did not preclude Plaintiffs from filing
this lawsuit to recover compensation for FLSA violations that
occurred before March 10, 1998.
Ergo, Defendant's Motion to Dismiss is DENIED as moot.
Its alternative Motion for Summary Judgment is ALLOWED in part
and DENIED in part. Summary judgment is denied to the extent
Plaintiffs' suit seeks back pay that accrued before March 10,
1998. Summary Judgment is granted in favor of Defendant for FLSA
violations that allegedly occurred during a period commencing
March 10, 1998.
Furthermore, summary judgment is granted to Defendant on
Plaintiffs' claim for injunctive relief. However, this order
shall not have any res judicata or collateral estoppel effect on
the Secretary's suit in Herman v. Excel Corp., 98-3164.
Lastly, the Clerk of Court is directed to consolidate this case
with case number 98-3164.