United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 17, 2010 Decided February 11, 2011
No. 09-7133
PABLO FIGUEROA, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA METROPOLITAN POLICE
DEPARTMENT,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01992)
John V. Berry argued the cause for appellants. With him on
the briefs was Stephanie E. Hosea.
James C. McKay, Jr., Senior Assistant Attorney General,
Attorney General’s Office for the District of Columbia, argued
the cause for appellee. With him on the brief were Peter J.
Nickles, Attorney General, Todd S. Kim, Solicitor General, and
Donna M. Murasky, Deputy Solicitor General. Mary L. Wilson,
Assistant Attorney General, entered an appearance.
Before: GINSBURG, ROGERS, and GARLAND, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Officers of the District of
Columbia Metropolitan Police Department (MPD) sued their
employer under the Fair Labor Standards Act (FLSA), alleging
that MPD had failed to calculate their overtime based on
enhanced pay owed to detective sergeants under the District of
Columbia Code. The district court dismissed the officers’
claims as barred by the statute of limitations. Although we
agree that some of the officers’ claims are untimely, we do not
agree that all of their claims are barred. Because a new cause of
action accrues each time MPD issues a deficient paycheck,
claims based on paychecks falling within the limitations period
are timely.
I
The District of Columbia Code provides that “[e]ach officer
or member [of the MPD] who is promoted . . . to the rank of
detective sergeant shall receive, in addition to his scheduled rate
of basic compensation, $595 per annum . . . so long as he
remains in such assignment.” D.C. CODE § 5-543.02(c). On
December 12, 2003, three of the four plaintiffs in this case filed
a grievance through their union, alleging that they had fulfilled
the duties of detective sergeant but had not received the
additional $595 per year stipend. In a December 29, 2003 letter,
the Chief of Police denied the grievance, stating that the
Department had not utilized the position of detective sergeant
for more than two decades.
In accordance with its collective bargaining agreement, the
officers’ union then sought a ruling on the issue from an
arbitrator. The arbitrator found that the D.C. Code provision
applied to the officers because they had performed the functions
of detective sergeant. He rejected MPD’s argument that the
3
grievance was untimely, concluding that the officers had not
previously “discovered” the D.C. Code provision, and,
moreover, that their claim was for “an on-going and continuing
violation.” Arbitrator’s Opinion at 6 (June 11, 2004) (J.A. 106).
He then awarded the officers “the Status of Detective Sergeant”
and back pay of $595 per year. Id. at 8 (J.A. 108). On
September 30, 2005, the District of Columbia’s Public
Employee Relations Board (PERB) denied MPD’s request to set
aside the arbitrator’s award. PERB Decision at 2-4 (J.A. 96-98).
Following the PERB’s ruling, MPD took steps to
compensate retroactively those officers who had served as
detective sergeants. In 2007, it amended the personnel forms of
three of the plaintiffs to show that they had served and continued
to serve as detective sergeants, and it gave them lump sum
payments of $595 per year for every year they were assigned to
the position. The Department did not, however, recalculate the
officers’ overtime based on the $595 stipend. At the time this
lawsuit was filed, the fourth plaintiff had neither been
reclassified as a detective sergeant nor awarded back pay.
On November 5, 2007, the officers filed a complaint against
MPD in United States District Court, alleging violations of the
Fair Labor Standards Act, 29 U.S.C. § 201 et seq. The
complaint alleged three violations: (1) willful failure to pay
minimum wages, in violation of § 206(b); (2) untimely payment
of wages, in violation of § 206(b); and (3) willful failure to pay
overtime, in violation of § 207(a). The officers also alleged that
the Department violated the detective sergeant provision of D.C.
Code § 5-543.02(c). The district court found the D.C. Code
claim barred by res judicata on the ground that the arbitration
proceeding constituted a final judgment on the merits, and it
found the FLSA claims barred by the statute of limitations. It
therefore entered summary judgment in favor of MPD.
4
Figueroa v. D.C. Metro. Police Dep’t, 658 F. Supp. 2d 148, 152,
154 (D.D.C. 2009). This appeal followed.
II
We review the district court’s grant of summary judgment
de novo. Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir.
2008). Summary judgment is appropriate only if “there is no
genuine issue as to any material fact and . . . the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). “We must view the evidence in the light most favorable
to the nonmoving party, draw all reasonable inferences in his
favor, and eschew making credibility determinations or
weighing the evidence.” Montgomery, 546 F.3d at 706.
On appeal, the officers challenge only one aspect of the
district court’s decision: its conclusion that their FLSA
overtime claims are time-barred. The overtime claims are based
on 29 U.S.C. § 207(a), which provides that “no employer shall
employ any of his employees . . . for a workweek longer than
forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate of
not less than one and one-half times the regular rate at which he
is employed.” The officers charge that, in calculating their
overtime compensation, MPD failed to include within the
“regular rate” the $595 stipend for detective sergeants required
by D.C. Code § 5-543.02(c). Because the district court found
the officers’ complaint barred by the FLSA’s statute of
limitations, it did not address the merits of their argument. See
Figueroa, 658 F. Supp. 2d at 154-55.
The FLSA provides affected employees with a cause of
action to recover for violation of its overtime provision, see 29
U.S.C. § 216(b), and its statute of limitations provides that any
5
action to collect unpaid overtime “shall be forever barred unless
commenced within two years after the cause of action accrued,
except that a cause of action arising out of a willful violation
may be commenced within three years after the cause of action
accrued,” 29 U.S.C. § 255(a). MPD maintains that the
appellants’ FLSA claims are time-barred because they accrued
more than three years before this lawsuit was filed -- the first
time the officers improperly failed to receive the compensation
of a detective sergeant, a position MPD eliminated more than
twenty years ago. The appellants counter that their claims did
not accrue that early because MPD misrepresented the existence
of the position and they did not know of their rights under the
D.C. Code.
Whatever the validity of the plaintiffs’ contention regarding
their knowledge prior to December 12, 2003, it is clear that they
knew of their claims as of that date -- because on that date they
filed their grievance for non-payment under § 5-543.02(c). See
Figueroa, 658 F. Supp. 2d at 154-55 & n.9. Had the officers
filed their lawsuit within three years of December 12, 2003, they
might have been able to assert earlier claims. But they did not.
Instead, they filed almost four years later, on November 5, 2007.
As a consequence, they may not now recover for non-willful
violations that occurred more than two years or for willful
violations that occurred more than three years before they filed
their complaint. That is, they may not now recover for
violations that occurred before November 5, 2004.1
1
Because the parties have not addressed the question, we use
November 5 as the dividing line for purposes of discussion without
deciding whether the statutory phrase “within three years after the
cause of action accrued” might instead require selection of November
4 or 6. See 29 U.S.C. § 255(a) (emphasis added). The precise date is
an issue to be decided on remand.
6
The appellants contend that they are not barred from
asserting claims arising before November 5, 2004 because they
were unable to bring any claims until the PERB affirmed the
arbitrator’s decision. In their view, the PERB’s determination
that they had a right to the $595 yearly stipend was a “condition
precedent” to their FLSA suit. Appellants’ Br. 20. And because
the PERB did not make that determination until September
2005, they maintain that their November 2007 complaint was
timely as to all willful violations.
But as the district court held and the appellants conceded at
oral argument, there is nothing in the FLSA that requires a
claimant to obtain a favorable administrative decision before he
or she can sue in federal court. See Figueroa, 658 F. Supp. 2d
at 154, 155 n.9; Oral. Arg. Recording at 8:30-9:04. The Federal
Circuit’s decision in Cook v. United States, 855 F.2d 848 (Fed.
Cir. 1988), upon which the appellants rely by analogy, does not
assist them. In that case, an amendment to the FLSA made “the
right of firefighters to statutory overtime depend[] on a
condition precedent, the performance of . . . [a] study” by the
Secretary of Labor. Id. at 851. Accordingly, the court held that
the plaintiff firefighters’ cause of action did not accrue until that
condition was fulfilled. Id. The FLSA provision at issue here,
by contrast, contains no such precondition.2 Hence, nothing
relieves the appellants of the bar against bringing claims that
arose before November 5, 2004.3
2
Indeed, Cook noted that the rule in the firefighters’ case was
“contrary to the usual rule, i.e., that a claim for unpaid overtime under
the FLSA accrues at the end of each pay period when it is not paid.”
Cook, 855 F.2d at 851.
3
On appeal, the officers argue that they are entitled to relief from
the statute of limitations based on the doctrines of equitable estoppel
and equitable tolling. As the officers acknowledge, they did not assert
7
This analysis does not, however, preclude the appellants
from bringing FLSA claims that arose after November 5, 2004.
In dismissing the officers’ complaint outright, the district court
implicitly concluded that they have no such claims. The officers
disagree, arguing that “[e]ach time Appellants received a
paycheck without proper overtime compensation, a new cause
of action accrued under the FLSA.” Appellants’ Br. 22. Thus,
claims arising from paydays after November 5, 2004 are not
barred.
MPD contends that the officers forfeited any such claims by
failing to assert them in the district court. We disagree.
Because the officers sought unpaid overtime for their entire
tenure as detective sergeants, their claims necessarily included
a request for unpaid overtime during the three years before their
suit was filed. The complaint charged that MPD was “required
to pay individual plaintiffs time-and-one-half compensation for
all overtime hours worked in excess of 40 hours per week
depending on their individual periods of time worked as
detective sergeant,” Compl. ¶ 61 (emphasis added), and their
affidavits alleged that they served as detective sergeants well
into the statute of limitations period, see J.A. 143, 147, 158, 162.
Indeed, the officers sought damages in “a sum equivalent to and
in addition to their compensation which was not paid . . . for the
several years preceding this suit until the conclusion of the
current action as required by statute.” Compl. ¶ 68 (emphasis
added). And their opposition to summary judgment argued that
“[w]ages are ‘unpaid’ when they are not paid on the ordinary
those doctrines in the district court. Oral Arg. Recording at 11:59-
12:11. Ordinarily, we do not consider arguments raised for the first
time on appeal, and appellants present no extraordinary circumstances
to explain their failure to raise these arguments in district court. See
District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084-85
(D.C. Cir. 1984).
8
payday,” Opp’n to Summary Judgment Mot. at 23, citing Biggs
v. Wilson, which recognized that “FLSA claims are continuing
claims and a separate cause of action ‘accrues’ every payday
that overtime is not paid,” 1 F.3d 1537, 1540 (9th Cir. 1993)
(citing Beebe v. United States, 640 F.2d 1283, 1293 (Ct. Cl.
1981)). We therefore reject MPD’s contention that the officers
forfeited this argument.
MPD also disputes the officers’ “each paycheck” argument
on the merits, contending that their cause of action could have
arisen no later than December 29, 2003, when the Chief of
Police denied their grievance and declared that the position of
detective sergeant did not exist. Appellee’s Br. 27. MPD insists
that, although the Chief’s declaration may have affected future
paychecks, such effects do not give rise to new causes of action.
It is true that in Ledbetter v. Goodyear Tire & Rubber Co.,
the Supreme Court held that, when the only act of intentional
discrimination in a Title VII case takes place outside the statute
of limitations, the fact that the act has adverse effects on
subsequent paychecks does not mean that a new violation occurs
with each new paycheck. 550 U.S. 618, 624-25, 628 (2007).4
A suit charging disparate treatment under Title VII, the Court
4
After the Supreme Court issued its decision in Ledbetter,
Congress amended Title VII as follows: “For purposes of this section,
an unlawful employment practice occurs, with respect to
discrimination in compensation in violation of this subchapter, when
a discriminatory compensation decision or other practice is adopted,
when an individual becomes subject to a discriminatory compensation
decision or other practice, or when an individual is affected by
application of a discriminatory compensation decision or other
practice, including each time wages, benefits, or other compensation
is paid, resulting in whole or in part from such a decision or other
practice.” See Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-
2, 123 Stat. 5 (codified at 42 U.S.C. § 2000e-5(e)(3)(A)).
9
said, is timely only if the intentionally discriminatory conduct
occurred within the limitations period. Id. at 628.5 But the
Ledbetter Court did not disagree that -- unlike for some
violations of Title VII -- “it is ‘well established that the statute
of limitations for violations of the . . . overtime provisions of the
[FLSA] runs anew with each paycheck.’” 550 U.S. at 641
(quoting Pet. Br. at 35). And that is certainly an accurate
description of the caselaw. See, e.g., Knight v. City of
Columbus, 19 F.3d 579, 581 (11th Cir. 1994); Biggs, 1 F.3d at
1540; Cook, 855 F.2d at 851; Halferty v. Pulse Drug Co., 821
F.2d 261, 271 (5th Cir. 1987); Mid-Continent Petroleum Corp.
v. Keen, 157 F.2d 310, 316 (8th Cir. 1946); Beebe, 640 F.2d at
1293; see also THE FAIR LABOR STANDARDS ACT §18.VI.B.6, at
1210-12 (Ellen C. Kearns ed., 1990) (“[A] new separate cause
of action accrues . . . on the payday for each workweek in which
the employee has worked and has not been paid . . . overtime
compensation.”).
As the Ledbetter Court explained, the distinction between
a Title VII disparate-treatment claim and an FLSA overtime
claim is “the fact that an FLSA . . . claim does not require proof
of specific intent to discriminate.” 550 U.S. at 641; cf. Lewis v.
Chicago, 130 S. Ct. 2191, 2199-200 (2010) (distinguishing
between Title VII disparate-treatment and disparate-impact
claims on the same ground). Rather, “an employee has carried
out his burden [in an FLSA action] if he proves that he has in
fact performed work for which he was improperly
5
See Ledbetter, 550 U.S. at 624 (indicating that the petitioner’s
complaint would have been timely if the employer had “acted with
actual discriminatory intent . . . when [it] issued her checks during the
[limitations] period”); see also Lewis v. Chicago, 130 S. Ct. 2191,
2199 (2010) (explaining that Ledbetter “establish[es] only that a Title
VII plaintiff must show a ‘present violation’ within the limitations
period”).
10
compensated.” Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680, 687 (1946).6 Each of those elements, performance and
improper compensation, recurs with each pay period.7
Accordingly, although the officers refer to their “each
paycheck” theory as one involving “continuing claims,” that
term “is something of a misnomer.” Knight, 19 F.3d at 582. In
fact, the gravamen of this theory is not that there has been one
continuing violation of the FLSA, but rather that there have been
“a series of repeated violations of an identical nature.” Id. And
“[b]ecause each violation gives rise to a new cause of action,
each failure to pay overtime begins a new statute of limitations
period as to that particular event.” Id.; see id. at 581 (rejecting
city’s argument that, because it adopted its personnel
classification system more than three years before the plaintiffs
brought suit, they had forever lost the right to challenge the
failure to include overtime payments in their paychecks). The
underpayment is not the “effect” of a prior violation; it is the
violation itself.
6
See 29 U.S.C. § 207(a)(1) (providing that “no employer shall
employ any of his employees . . . for a workweek longer than forty
hours unless such employee receives compensation for his
employment . . . at a rate not less than one and one-half times the
regular rate at which he is employed”); id. § 216(b) (providing that
“[a]ny employer who violates the provisions of . . . section 207
. . . shall be liable to the employee or employees affected,” and further
providing that such employees may bring “[a]n action to recover the
liability prescribed . . . in any Federal or State court of competent
jurisdiction”).
7
Cf. Biggs, 1 F.3d at 1539 (holding that the time when the
minimum wage provision of the FLSA is “violated, or, put another
way, when minimum wages become ‘unpaid,’” is “when they are not
paid at the time work has been done, the minimum wage is due, and
wages are ordinarily paid -- on payday”).
11
Alldread v. City of Grenada, 988 F.2d 1425 (5th Cir. 1993),
cited by MPD, is not to the contrary. In that case, the plaintiff
firefighters alleged that the city had violated the FLSA’s
overtime provision by refusing to pay them for “sleep time.” Id.
at 1427. Under the Labor Department’s FLSA regulations, a
municipality may exclude sleep time “‘if there is an expressed
or implied agreement between the employer and the
employees’” to that effect. Id. at 1428 (quoting 29 C.F.R.
§ 553.222(c)) (emphasis added). In Alldread, there was such an
agreement, but the plaintiffs claimed that the city had unlawfully
coerced them into signing it. Id. at 1429. Because the “alleged
act of coercion [was] the event giving rise to appellants’
complaint and [was] patently a single violation of the FLSA,”
and because that act took place outside the statute of limitations,
the court found the plaintiffs’ suit time-barred. Id. at 1432.
Here, by contrast, the Chief’s 2003 declaration that the
position of detective sergeant no longer existed is not what gives
rise to the officers’ FLSA claims. If the officers have
meritorious claims, it is because they worked more than forty
hours in particular weeks, and because MPD failed to take the
$595 stipend into account when it paid them overtime for those
weeks. Thus, their complaint is based not on “a single violation
[of the FLSA] that occurred outside the statute of limitations,”
Alldread, 988 F.2d at 1430 (internal quotation marks omitted),
but on repeated violations, some of which fall within the
limitations period.
In sum, the appellants may recover if their paychecks failed
to include properly calculated overtime compensation during the
two or three years before they filed their complaint -- depending
upon which limitations provision is applicable. As the district
court did not determine the merits of the officers’ claims, or
which limitations period applies, we remand the case for further
proceedings consistent with this opinion.
12
III
For the forgoing reasons, we reverse the district court’s
entry of summary judgment against the appellants with respect
to overtime claims accruing after November 5, 2004. See supra
note 1. With respect to the appellants’ other claims, the
judgment is affirmed.
Reversed in part and remanded.