Knight v. Columbus, Ga.

• Decision Date: 22 April 1994
• Docket Number: No. 93-8580,93-8580
• Citation: 19 F.3d 579
• Parties: , 128 Lab.Cas. P 33,087, 1 Wage & Hour Cas. 2d (BNA) 1633 Peter L. KNIGHT, Dennis L. Wall, Michael D. Mulkey, et al., Plaintiffs-Appellants, Cross-Appellees, v. COLUMBUS, GEORGIA, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 579

19 F.3d 579

62 USLW 2720, 128 Lab.Cas. P 33,087,

1 Wage & Hour Cas. 2d (BNA) 1633

Peter L. KNIGHT, Dennis L. Wall, Michael D. Mulkey, et al Plaintiffs-Appellants, Cross-Appellees, v. COLUMBUS, GEORGIA, Defendant-Appellee, Cross-Appellant.

No. 93-8580.

United States Court of Appeals Eleventh Circuit.

April 22, 1994.

Harlan S. Miller, Kirwan, Goger, Chesin and Parks, PC, Theresa L. Kitay, Allan L. Parks, Jr., Atlanta, GA, for appellants.

Eugene Hardwick Polleys, Jr., Columbus, GA, for appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and MERHIGE ^*, Senior District Judge.

CARNES, Circuit Judge:

I. INTRODUCTION

This case requires us to determine the applicability of the "continuing violation" doctrine to the statute of limitations under the Fair Labor Standards Act (FLSA). 29 U.S.C.A. Secs. 201 et seq. The plaintiffs, former, present, and future officers and non-officer employees of the fire department of Columbus, Georgia ("the City"), filed this action on October 1, 1990. The officer plaintiffs allege that since the FLSA became applicable to local governments in 1985-86, the City has misclassified them as exempt executive or administrative employees and has failed to pay them overtime as required by section 7 of the FLSA. 29 U.S.C.A. Sec. 207 (1965 & Supp.1993).

In contrast, the City has never denied that the non-officer plaintiffs are covered by the overtime provisions of the FLSA. The non-officers allege, however, that, on July 1, 1987, in order to evade the financial effects of the FLSA, and in violation of section 8 of the Fair Labor Standards Amendments of 1985, Pub.L. No. 99-150, Sec. 8, 99 Stat. 787, 791 (1985), the City denied the non-officers a 7.5% pay increase granted to all City public safety employees not eligible for overtime.

The City moved for summary judgment on the merits and the district court denied the motion, finding "it to be clear that there exist disputed issues of material fact." The defendants renewed their motion for summary judgment on the merits, and also argued that the plaintiffs' claims were barred by the statute of limitations. Relying on our unpublished decision in Dunn v. Cobb County, 11th Cir. (No. 91-9086, Nov. 25, 1992), the district court held that both groups of plaintiffs' claims were barred by the statute of limitations, 29 U.S.C.A. Sec. 255(a) (1985), and entered summary judgment for the City. Both sets of plaintiffs appeal, arguing that their claims are timely under the "continuing violation" doctrine.

II. STANDARD OF REVIEW

We exercise plenary review over the district court's grant of summary judgment. Chapman v. Klemick, 3 F.3d 1508, 1509 (11th Cir.1993). In this case, the district court held that the plaintiffs' claims were barred by operation of the statute of limitations. In such circumstances:

our review is ... akin to the review of a dismissal for failure to state a cause of action or a judgment on the pleadings, because the dispute is whether there can be any right to assert the claim in the first instance. Given this posture, we must assume that the material allegations of the complaint are true and construe all inferences arising therefrom in [the plaintiffs'] favor.

Jones v. Resolution Trust Corp., 7 F.3d 1006, 1008 (11th Cir.1993) (footnote omitted).

III. DISCUSSION

A. THE CONTINUING VIOLATION THEORY

"The standard for determining whether an employment practice constitutes a continuing violation was set forth in Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980)." Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796 (11th Cir.1992). In Gonzalez, a suit brought under Title VII, we held that:

A past act of discrimination for which a party did not file a charge of discrimination with the EEOC within the limitations period is legally equivalent to a discriminatory act that occurred before the enactment of Title VII. Although such a past discriminatory act may continue to affect an employee's present pay and fringe benefits, such an effect does not constitute a continuing violation of Title VII. ... [T]he critical question is whether any present violation exists. ... [W]here the employer engaged in a discrete act of discrimination [outside the limitations period], allegations that the discriminatory act continues to adversely affect the employee or that the employer presently refuses to rectify its past violation will not satisfy the [statute of limitations].

Gonzalez, 610 F.2d at 249 (citations omitted). The critical distinction in the continuing violation analysis, therefore, is whether the plaintiffs complain of " 'the present consequence of a one time violation, which does not extend the limitations period, [or] the continuation of that violation into the present, which does.' " Calloway v. Partners Nat'l Health Plans, 986 F.2d 446, 448 (11th Cir.1993) (quoting Beavers, 975 F.2d at 796); see also Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 658 (11th Cir.1993). ¹ Where a continuing violation is found, the plaintiffs can recover for any violations for which the statute of limitations has not expired. Beavers, 975 F.2d at 796.

B. THE OFFICER PLAINTIFFS' CLAIM

The FLSA exempts from its overtime requirements "any employee employed in a bona fide executive, administrative, or professional capacity... ." 29 U.S.C.A. Sec. 213(a)(1) (1965 & Supp.1993); see also 29 C.F.R. Secs. 541.1 to 541.3 (1993). The City argues that the officer plaintiffs, who hold the ranks of lieutenant, captain, and battalion chief, are exempt executive or administrative employees and that, therefore, they are not entitled to overtime under the FLSA. The officer plaintiffs contend that they are not salaried employees, that their job functions place them beyond the scope of the executive and administrative exemptions, and that, therefore, they are entitled to overtime.

The City argues that even if the officer plaintiffs are not exempt, their claim is untimely because the City adopted its classification system more than three years ago. Actions under the FLSA are "forever barred" unless "commenced within two years after the cause of action accrued." 29 U.S.C.A. Sec. 255(a) (1985). In the case of willful violations, the limitations period is extended to three years. Id. According to the City, the adoption of its classification system constitutes a discrete past act which started the limitations clock running; by failing to assert their rights within three years of the policy's adoption, the officer plaintiffs forever lost the right to challenge the system. We disagree.

The City's argument fails because, if the officer plaintiffs are not subject to the exemption, the FLSA has been violated each time the City issued an officer plaintiff a paycheck that failed to include payment for overtime hours actually worked. Absent an applicable exemption, the FLSA requires the City to pay its firefighters overtime once they have worked more than 159 hours in any 21 day work period. 29 C.F.R. Sec. 553.230(c) (1993). Each failure to pay overtime constitutes a new violation of the FLSA. Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1050 (5th Cir.1973) ("It is well settled that [a] separate cause of action for overtime compensation accrues at each regular payday immediately following the work period during which the services were rendered and for which the overtime compensation is claimed." (internal quotation marks omitted)); Halferty v. Pulse Drug Co., 821 F.2d 261, 271 (5th Cir.1987); Beebe v. United States, 226 Ct.Cl. 308, 640 F.2d 1283, 1293 (1981); Aaron v. City of Wichita, 797 F.Supp. 898, 902 (D.Kan.1992) ("[E]ach paycheck received by plaintiffs constituted a new cause of action for the alleged violation of the FLSA [and] plaintiffs are entitled to recover for any violations which occurred in the two years preceding [the date of their claim]."); Mitchell v. Lancaster Milk Co., 185 F.Supp. 66, 70 (M.D.Pa.1960); cf. Bazemore v. Friday, 478 U.S. 385, 395, 106 S.Ct. 3000, 3006, 92 L.Ed.2d 315 (1986) ("Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII ...."); Mitchell v. Jefferson County Bd. of Educ., 936 F.2d 539, 548 (11th Cir.1991) (applying the continuing violation theory to actions under the Equal Pay Act and noting that the theory is "applicable to challenges under the [FLSA] for illegal minimum wages or overtime payments"); Brewster v. Barnes, 788 F.2d 985, 993 (4th Cir.1986) (applying the continuing violation theory to discriminatory wage payments under the Equal Pay Act); Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir.1980) (holding that Title VII and Equal Pay Act claims were not barred by the statute of limitations because the alleged discrimination occurred each time the female plaintiff was paid less than her male colleagues for the same work).

Although the theory on which the officer plaintiffs rely is often called the "continuing violation theory," see, e.g., Hendrix v. City of Yazoo City, 911 F.2d 1102, 1103 (5th Cir.1990), in the present case, the term is something of a misnomer. The term "continuing violation" suggests that the original violation, namely the decision to classify overtime-eligible employees as exempt, is somehow the source of the employees' present ability to recover. It is not. Assuming they are not exempt employees, the source of their recovery is the failure to pay them overtime, not the City's rationale for not paying them overtime. For statute of limitations purposes, the City's decision to classify the officer plaintiffs as exempt is not relevant--except, perhaps to the willfulness issue and whether the three-year or two-year period applies. What is determinative for statute of limitations purposes is that the officer plaintiffs have worked unpaid overtime hours during the statute of limitations window.

The term "continuing violation" also...