Mccloskey & Co. v. Dickinson

• Decision Date: 10 January 1948
• Docket Number: Nos. 551, 552.,s. 551, 552.
• Citation: 56 A.2d 442
• Court: D.C. Court of Appeals
• Parties: McCLOSKEY & CO. v. DICKINSON. DICKINSON v. McCLOSKEY & CO.

56 A.2d 442

McCLOSKEY & CO.

v.DICKINSON.

DICKINSON

v.McCLOSKEY & CO.

Nos. 551, 552.

Municipal Court of Appeals for the District of Columbia.

Dec. 19, 1947.

Rehearing Denied Jan. 10, 1948.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by Charles E. Dickinson against McCloskey & Company for overtime pay, liquidated damages and attorney's fees under the Fair Labor Standards Act. From a judgment for plaintiff for $1,220.16, and an attorney's fee of $300, each party appeals.

Judgment affirmed on McCloskey & Company's appeal and judgment reversed for further proceedings consistent with opinion on Dickinson's appeal.

HOOD, J., dissenting.

Harry L. Horton, of Washington, D. C., for McCloskey & Co.

Albert F. Beasley, of Washington, D. C., for Dickinson.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

CAYTON, Chief Judge.

These are cross-appeals from a judgment in an employee's suit for overtime pay, liquidated damages and attorney's fees, brought under the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. Section 201 et seq.

The employee, Dickinson, went to work for McCloskey & Company at a shipyard in Florida on August 23, 1942 and worked for that company until February 1945. His classification was that of designer or mechanical engineer and for some eight months he was paid at the rate of $480 per month. With very fee exceptions, he worked forty-eight hours every week.

On April 26, 1943 he was called in and told that for the convenience of the payroll department his rate of pay would be changed to $2.14 per hour. When he objected to the change and wanted to resign he was reminded that he could not resign because, being a defense worker, he was ‘frozen’ in the job. He was assured that the change would not make any difference to him and that he would continue to receive the same amount of money. He signed the ‘change of rate’ slip and worked under the new arrangement until July 10, 1944. He was then returned to his original pay basis of $480 per month, and on that basis he remained until he left the company on February 28, 1945. In the latter part of 1944 he made claim for overtime pay. He repeated the claim verbally several times before he left the job, and each time he was told the matter had not been settled. Before he left he put his claim in writing, and after leaving he wrote several more letters to the defendant company. We shall discuss its replies later. Finally on February 11, 1946, in response to his inquiry, he was informed by letter from the Wage and Hour Division of the Department of Labor that, despite the approval of that Division, his claim had been disallowed by representatives of the McCloskey Company, and of the U. S. Maritime Commission for whom the company had been working during the period of plaintiff's employment.

About four months later plaintiff brought this action, claiming that under the Fair Labor Standards Act, Section 7, 29 U.S.C.A. § 207, he was entitled to overtime pay at the rate of one and one-half times his regular pay for all hours worked in excess of forty hours in each work-week. He also claimed an additional equal amount as liquidated damages, and an attorney's fee, both authorized by the Act. Defendant answered, resisting plaintiff's claim on the grounds (1) that plaintiff had been employed in an administrative capacity and was therefore entitled to no overtime because of the exemption provisions of the Act, Section 13, 29 U.S.C.A. § 213, (2) that under D.C.Code 1940, 12-201, so much of plaintiff's claim as related to wages earned more than three years before the filing of the suit was barred by limitations, and (3) that plaintiff had on April 26, 1943 agreed to the change of rate above referred to.

The trial court ruled against defendant on the plea of limitations and also on the merits of plaintiff's claim, and decided that plaintiff was entitled to overtime pay from August 23, 1942 to April 25, 1943, inclusive, and from July 10, 1944 to February 28, 1945, inclusive (these being the two periods when plaintiff had been paid on a straight monthly basis of $480). This overtime, according to the finding, amounted to $610.08. In accordance with the provisions of the Act the judge doubled that amount, awarding plaintiff $1,220.16; and also allowed him an attorney's fee of $300. From so much of the judgment defendant has appealed.

The judgment awarded plaintiff nothing for the period during which he had worked at the hourly rate. From that part of the judgment plaintiff has filed a cross-appeal. We shall first consider the appeal of McCloskey & Company.

1. The Plea of Limitations.

As we have seen, defendant contended that by reason of our statute of limitations plaintiff could not recover for any part of the claim which was more than three years old. Plaintiff charged that defendant had by its conduct estopped itself to plead the statute. To support his position he offered testimony that before leaving defendant's employ he had demanded his overtime pay, once in writing and several times verbally and was always told that the matter had not been settled. After leaving the service of the company he renewed his demands through the medium of several letters. Three letters which the company sent in reply are of vital importance. The first letter, written August 17, 1945, recited that plaintiff's claim, together with a number of others, had been turned over to the Wage and Hour Division whose representative had forwarded his findings to the main office at Atlanta for final decision, with the understanding that such findings were to be submitted to the Maritime Commission at New Orleans, Louisiana. The letter continued ‘upon approval of the Maritime Commission and their direction to pay, checks will be issued by this company,’ and assured plaintiff that the delay was due to no fault of defendant. The next letter, written on October 15, 1945, told plaintiff that all claims had been finally settled by the Wage and Hour Division and a report made to the Maritime Commission; that the company was awaiting their approval ‘so that payments can be made.’ The writer of the letter added that so far as he knew the Wage and Hour Division had approved additional compensation for plaintiff, but that payments would be made on approval of the Maritime Commission, and not on the findings of the Wage and Hour Division. The letter concluded by saying: ‘I will also advise you on the final outcome of your overtime claim with more definite information as to how to proceed in the collection of same, if disapproved.’ The last letter written October 26, 1945 told plaintiff that the company had received no definite decision from the Maritime Commission, that they expected a decision within the next week ‘and will advise you accordingly.’ But the company never gave him any report whatever as to what had been done. It was not until plaintiff wrote to the Atlanta office of the Wage and Hour Division that he learned that representatives of the defendant company and of the Maritime Commission had refused to accept the favorable recommendation of the Wage and Hour Division on the claim.

Under these circumstances we cannot say that the trial judge was wrong in ruling that defendant was estopped to plead limitations. It has always been the rule that one cannot by words or conduct induce inaction on the part of a creditor and then when the creditor sues, attack his suit on the ground that it was filed too late. Nowhere is the rule more clearly stated than in a frequently quoted case in our own jurisdiction.

‘We think it is a well-settled principle that a defendant cannot avail himself of the bar of the statute of limitations, if it appears that he has done anything that would tend to lull the plaintiff into inaction, and thereby permit the limitation prescribed by the statute to run against him. * * * Defendant must have done something that amounted to an affirmative inducement to plaintiffs to delay bringing action.' ¹ (Emphasis supplied.)

We think it clear that in the circumstances before us it was entirely reasonable for plaintiff to rely on the words and conduct of defendant and to file no suit while his claim was being considered by the defendant company, by the Wage and Hour Division, and by the Maritime Commission. It is clear that while this was going on he was affirmatively induced to take no action on his claim. It is of more than passing importance that despite its promise to do so the defendant company never notified him that his claim had been rejected. ² He managed to get that information by his correspondence with the Wage and Hour Division. Four months after he got the information his suit was filed. We cannot hold that he was then too late.

2. Plaintiff's Status Under the Act.

Defendant took the position that plaintiff was not entitled to overtime pay because he was an administrative employee and as such belonged in an excepted class covered by Section 13, 29 U.S.C.A. § 213, of the Act, to whom no overtime was payable. As to this contention the evidence was in conflict. Plaintiff described the nature of his work and testified that his duties were purely clerical. He explained his high salary by saying that defendant knew it had to pay him that much in order to obtain his services. Defendant attempted to show under Wage and Hour Regulations ³ that plaintiff's duties were of an administrative nature. The trial judge found that his duties were clerical; that while they perhaps required technical knowledge, his duties consisted principally of transcribing certain lists of piping materials and checking with other departments of the company as to procuring materials. The judge also found that plaintiff had no authority to exercise independent discretion or judgment and was bound by instructions from his superior. The memorandum filed in the case concluded: ‘While it may be that plaintiff from time to time acted in an...