Prickett v. DeKalb County

                                                                  [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                  FILED
                       ________________________
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                               No. 03-11774                  November 5, 2003
                          Non-Argument Calendar           THOMAS K. KAHN
                       ________________________                  CLERK
                   D. C. Docket No. 97-03395-CV-TWT-1

CHRISTOPHER D. PRICKETT,
DONALD A. COX,
et al.,
on behalf of themselves and all
members of the DeKalb County Fire
Department who consent to
representation,
JAMES K. ADAMS,
STIG T. AHLENIUS,
et al.,

                                                         Plaintiffs-Appellants,

                                    versus

DEKALB COUNTY,

                                                          Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                            (November 5, 2003)
Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

      The named plaintiffs in this case, employees of the Fire Services Bureau of

the DeKalb County Department of Public Safety, filed two claims against DeKalb

County for overtime pay pursuant to the Fair Labor Standards Act of 1938, 29

U.S.C. § 201, et seq. The case became a class action when several hundred

additional plaintiffs opted to join the named plaintiffs by filing consent forms with

the court pursuant to 29 U.S.C. § 216(b). The named plaintiffs then filed a Federal

Rules of Civil Procedure Rule 15(d) motion to supplement the complaint to assert

a third FLSA claim. The district court granted that motion to supplement but

subsequently granted summary judgment to the County as to all three claims. We

affirmed the district court’s dismissal of the first two claims, but vacated and

remanded to the district court for further consideration of the third claim.

      On remand, the district court granted the County’s motion for summary

judgment insofar as the opt-in plaintiffs were concerned on a new ground. The

new ground was that the opt-in plaintiffs were not parties to the third claim,

because they had not filed a new consent form after the original complaint had

been amended to add that claim. The theory behind the grant of summary




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judgment is that those plaintiffs who opt in under § 216(b) are plaintiffs only as to

claims before the court at the time they opted to join the action.

      This is the named-plaintiffs’ appeal of that grant of summary judgment on

behalf of the opt-in plaintiffs. We review a district court’s grant of summary

judgment de novo, applying the same legal standards used by the district court.

See, e.g., Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir.

1999). Summary judgment is appropriate where “there is no genuine issue as to

any material fact and . . . the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). We “‘view the evidence and all factual inferences

therefrom in the light most favorable to the party opposing the motion,’” and

“‘[a]ll reasonable doubts about the facts [are] resolved in favor of the

non-movant.’” Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir.

1999) (quoting Clemons v. Dougherty County, 684 F.2d 1365, 1368-69 (11th Cir.

1982)).

      FLSA is a remedial statute that “‘has been construed liberally to apply to the

furthest reaches consistent with congressional direction.’” Johnston v. Spacefone

Corp., 706 F.2d 1178, 1182 (11th Cir. 1983) (quoting Mitchell v. Lublin,

McGaughy & Assocs., 358 U.S. 207, 211, 79 S. Ct. 260, 264 (1959)). It requires

employers to pay one and one-half times the employee’s regular rate of pay for

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hours worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1).

Employers who violate these provisions of the FLSA are “liable to the employee

or employees affected in the amount of their . . . unpaid overtime compensation . .

. and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).

      An FLSA action for overtime pay can be maintained by “one or more

employees for and in behalf of himself or themselves and other employees

similarly situated.” 29 U.S.C. § 216(b). However, prospective plaintiffs under

FLSA must expressly consent to join the class, because § 216(b) contains this

provision: “No employee shall be a party plaintiff to any such action unless he

gives his consent in writing to become such a party and such consent is filed in the

court in which such action is brought.” Id. Because of this opt-in requirement,

FLSA plaintiffs may not certify a class under Rule 23. Grayson v. K Mart Corp.,

79 F.3d 1086, 1106 (11th Cir. 1996).

      The district court in this case ruled that § 216(b) requires opt-in plaintiffs to

submit new consent forms, i.e., that they opt in again, in order to be considered as

plaintiffs in regard to any FLSA claim which was not in the complaint as it stood

at the time they originally joined. The court’s thinking was that opt-in plaintiffs

do not join the action, but instead join specific claims within the action at the time

they consent to become a plaintiff. This legal conclusion is not supported by the

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language of the statute, nor is it supported by any holding of this circuit or any

other federal appeals court.

       We are bound by the intent of Congress, as expressed in the language of the

statute. The statute says, “[n]o employee shall be a party plaintiff to any such

action unless he gives his consent in writing to become such a party . . . .” 29

U.S.C. § 216(b) (emphasis added). That plain language indicates that plaintiffs do

not opt-in or consent to join an action as to specific claims, but as to the action as a

whole. The statute does not indicate that opt-in plaintiffs have a lesser status than

named plaintiffs insofar as additional claims are concerned. To the contrary, by

referring to them as “party plaintiff[s]” Congress indicated that opt-in plaintiffs

should have the same status in relation to the claims of the lawsuit as do the named

plaintiffs.

       Congress’ purpose in authorizing § 216(b) class actions was to avoid

multiple lawsuits where numerous employees have allegedly been harmed by a

claimed violation or violations of the FLSA by a particular employer. See De

Asencio v. Tyson Foods, Inc., 342 F.3d 301, 306 (3d Cir. 2003) (discussing the

legislative history of the Portal-to-Portal Act, which amended FLSA to add the

class action provision in order to reduce the number of FLSA lawsuits being filed

in federal court). That congressional intent would not be advanced by a

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requirement that new consents to join be submitted by opt-in plaintiffs, who may

sometimes number in the hundreds, in order for them to remain as full-fledged

plaintiffs. Those who fail to file written re-consents in time would be required to

file new actions on their own behalf in order to assert any claims added by

amendments to the complaint, and as a result, the number of lawsuits necessary to

litigate the same end result would be multiplied. Absent indication that Congress

wanted such an inefficient result – and here all the indication is that it did not – we

will not adopt a rule that would bring it about.

      Moreover, the language of the consent forms that the opt-in plaintiffs signed

in this case indicates that they consented to have the named plaintiffs adjudicate

all of their claims for overtime compensation under FLSA, not merely the claims

then specified in the complaint. The consent form states:


      Consent to representation in action to secure rights under the fair
      labor standards act. I, [name], am an employee of the Fire Rescue
      Division of the DeKalb County Department of Public Safety. I
      hereby consent to have the named Plaintiffs in this case represent my
      interests in adjudicating my claims for overtime compensation and
      any other benefits, including liquidated damages, available under the
      [FLSA]. I agree and understand that said representative shall file this
      consent in support of my claims and I agree to the adjudication of my
      interests by said representative in the class action brought by the
      Plaintiff Representative.




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The consent given was for the named plaintiffs to represent the interests of the

employee in adjudicating all claims that employee had under the FLSA. That

consent is broad enough to cover not only the claims then contained in the

complaint but also any that might be added to it during the litigation. Added

claims no less than initial claims are, in the language of the consent form, “my

claims for overtime compensation and any other benefits, including liquidated

damages, available under the FLSA.”

      For these reasons, the district court’s order granting summary judgment to

the County on the third claim insofar as the opt-in plaintiffs are concerned,

because of their failure to file new consents after that claim was added to the

complaint, is VACATED, and the case is REMANDED to the district court for

further proceedings consistent with this opinion.




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