Chao v. Virginia Dept. of Transp.

Decision Date18 July 2001
Docket NumberCiv. A. No. 3:00CV457.
Citation157 F.Supp.2d 681
CourtU.S. District Court — Eastern District of Virginia
PartiesElaine L. CHAO, Secretary, United States Department of Labor, Plaintiff, v. VIRGINIA DEPARTMENT OF TRANSPORTATION, Defendant.

Joan R. Evans, Esquire, Assistant United States Attorney, United States Attorney's Office, Richmond, VA, Elizabeth L. Beason, Esquire, Office of the Solicitor, United States Department of Labor, Arlington, VA, for Plaintiff.

Sydney E. Rab, Esquire, Judith W. Jagdmann, Esquire, Office of the Attorney General, Richmond, VA, for Defendant.

MEMORANDUM OPINION

PAYNE, District Judge.

The Plaintiff, Elaine L. Chao, United States Secretary of Labor,1 seeks relief against the Defendant, the Virginia Department of Transportation (VDOT), to enjoin violations of sections 7, 11(c), 15(a)(2), and 15(a)(5) of the Fair Labor Standards Act (FLSA) under section 17, 29 U.S.C. § 217. Specifically, the Amended Complaint asks for: (1) a ruling that the private actions filed and diligently pursued by individual employees in federal and state courts equitably tolled the statute of limitations to permit recovery of back wages for willful violations of the FLSA; (2) an order enjoining VDOT from withholding payment of back wages found due to its employees, as well as pre-judgment interest (computed under 26 U.S.C. § 6621); and (3) an order permanently enjoining and restraining VDOT from violating sections 7, 11(c), 15(a)(2), and 15(a)(5) of the FLSA.

BACKGROUND

Section V of the Amended Complaint alleges that, from approximately December 22, 1992 through December 31, 1994, in many workweeks, VDOT willfully violated the provisions of sections 7 and 15(a)(2) of the FLSA by not paying overtime to persons employed as Transportation Construction Inspectors and/or Transportation Inspectors Senior ("inspectors") for travel time between work sites. Section VI of the Amended Complaint alleges that VDOT violated section 11(c) of the FLSA by failing to maintain accurate records of hours worked by inspectors traveling between work sites (although the Amended Complaint notes that regulations require these records be kept only for three years).

These claims have been pursued since 1995 in federal and state court by individual employees. Specifically, several inspectors filed an action, Taylor, et al. v. Commonwealth of Virginia, Department of Transportation, Civil Action No. 3:95cv1026, in this Court on December 22, 1995 against VDOT and the Commonwealth of Virginia. Taylor v. Virginia, 951 F.Supp. 591, 592-93 (E.D.Va.1996). Notice of that action was sent to similarly situated VDOT employees, and 352 inspectors ultimately joined as plaintiffs. Taylor was consolidated with two similar actions, Kennedy v. Commonwealth of Virginia, Department of Transportation, Civil Action No. 3:96cv72, and Boswell v. Commonwealth of Virginia, Department of Transportation, Civil Action No. 3:96cv300. In Taylor, the inspectors sought overtime compensation for hours worked traveling between work sites, liquidated damages, injunctive relief, attorneys fees and costs. That action was dismissed on December 18, 1996 following, and because of, the Supreme Court's decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). The Secretary was not a party to the Taylor litigation, but did file a brief respecting the effect of Seminole Tribe on the action.

However, before the federal action was dismissed and as a result of the State's motion to dismiss because of the decision in Seminole Tribe, the inspectors filed suit in the Circuit Court for the City of Richmond on October 8, 1996. See Griffin, et al. v. Virginia Department of Transportation, LB 2505-1. There they alleged the same violations of the FLSA as were at issue in Taylor and they sought essentially the same relief. The state trial judge ruled that the federal court action had tolled the statute of limitations for the state court proceeding. The state trial judge decided to try the cases in groups. After a jury trial of the claims of the first group of 40 employees, judgment was entered for VDOT and against those 40 employees on November 4, 1998. Those inspectors appealed, and on February 9, 2000, the Supreme Court of Virginia denied their appeal.

The Secretary moved to intervene in the state suit and filed an Amended Motion for Judgment on September 3, 1999. The Secretary's motion to intervene was denied on the grounds that the Secretary could not intervene to litigate alongside the inspectors because the inspectors' actions were barred by sovereign immunity. See Def.'s Ex. 1. On May 10, 2000, the state trial judge dismissed the actions by the remaining employees (roughly 310) who had not received a final decision on the merits of their claims, relying on Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) and Commonwealth v. Luzik, 259 Va. 198, 524 S.E.2d 871 (2000) which held that the Commonwealth may not be sued by its employees in state court for violations of the FLSA without its consent.

The Secretary then filed this action on July 18, 2000. It involves the claims of roughly 100 employees who were plaintiffs in Taylor and Griffin and who have not had the merits of their claim heard in federal or state court. The Secretary does not here pursue the claims relating to the other 210 Taylor/Griffin plaintiffs because the Secretary interprets the law on compensable time more narrowly than those inspectors did in their private claims. VDOT has filed a Motion to Dismiss for Want of Subject Matter Jurisdiction and a Motion for Summary Judgment on the grounds that the statute of limitations has run. For the reasons set forth below, both motions are denied.

DISCUSSION
I. Motion to Dismiss for Want of Subject Matter Jurisdiction

VDOT moves to dismiss on grounds that fall into two general categories.2 First, according to VDOT, the Secretary has modified her policy so that it is now in line with VDOT's. Indeed, the Secretary does not allege that VDOT is continuing to violate the FLSA. See Plaintiff's Response to the Defendant's Motion to Dismiss for Want of Subject Matter Jurisdiction at 2. Therefore, VDOT argues that there is no "case or controversy" because the Secretary acknowledges that VDOT is no longer violating the FLSA respecting travel time. Into that argument, VDOT folds a standing objection, contending that the Secretary will not be able to secure a prospective injunction because there is no evidence that VDOT will violate the FLSA in the future and that, therefore, an injunction against withholding back pay cannot be entered without a prospective injunction against violating the FLSA. Also, in the view of VDOT, the Employee Commuting Flexibility Act of 1996 (ECFA), 29 U.S.C. § 254, resolves the substantive dispute in favor of VDOT, thereby making a prospective injunction unnecessary.

Second, VDOT argues that "principles of State sovereignty, the Eleventh Amendment, and Article III Standing combine to preclude this action for retroactive monetary relief for the benefit of state workers." This melded standing and immunity argument proceeds on the premise that the primary objective of this action is private in that there is no public purpose in it and then asserts that the Secretary cannot sue on behalf of the inspectors because this is essentially a private action.

For the reasons set forth below, VDOT's arguments fail and the Motion to Dismiss for Want of Subject Matter Jurisdiction is denied.

A. There is a Case and Controversy

There are two parts to the controversy: first, whether VDOT violated the FLSA and owes back wages, and second, whether a prospective injunction should issue because of a likelihood that VDOT will violate the FLSA in the future. 29 U.S.C. § 217 confers upon this Court the power "to restrain violations of section 215 of this title, including in the case of violations of section 215(a)(2) of this title the restraint of any withholding of payment of minimum wages or overtime compensation found by the court to be due to employees under this chapter."

1. The ECFA Does Not Moot This Controversy

Contrary to VDOT's assertion, the ECFA does not render moot either aspect of the controversy. ECFA provides that no employer shall be liable for failure to compensate an employee for the following activities engaged in on or after May 14, 1947:

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said principal activity or activities,

which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. For purposes of this subsection, the use of an employer's vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee's principal activities if the use of such vehicle for travel is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.

29 U.S.C. § 254(a). ECFA applies retroactively, and both parties agree that it applies to the employees in this action. See Baker v. GTE North Inc., 110 F.3d 28 (7th Cir.1997). In deciding whether ECFA forecloses liability, "[e]ach case turns on the particular facts and circumstances involved." United Transp. Union Local 1745 v. City of Albuquerque, 178 F.3d 1109, 1117 (10th Cir.1999).

ECFA, however, does not resolve the dispute over whether the travel...

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