PEGGY JO SMITH, individually and on behalf of similarly situated individuals v. PROFESSIONAL TRANSPORTATION, INC., and RONALD D. ROMAIN
No. 20-2046
United States Court of Appeals For the Seventh Circuit
ARGUED DECEMBER 9, 2020 — DECIDED JULY 16, 2021
Appeal from United States District Court for the Southern District of Indiana, Evansville Division. No. 3:13-cv-00221-RLY-MPB — Richard L. Young, Judge.
Before WOOD, BRENNAN, and ST. EVE, Circuit Judges.
At first, it seemed that Smith‘s effort to serve as a named representative of a collective action under the Act was proceeding well. Her initial filing was well within the two years that the Act provides for the commencement of litigation. See
The case went off the rails, however, when PTI pointed out that Smith herself had not filed anything in addition to her complaint indicating that she herself wished to participate in the group action. Relying on our decision in Harkins v. Riverboat Services, Inc., 385 F.3d 1099 (7th Cir. 2004), the district court deemed this a fatal flaw for the collective action. It held that Smith‘s group action could not “commence” until such a consent was filed.
Aside from some stray references to the underlying putative collective action, Smith‘s appeal contests only the district court‘s refusal to allow her individual action to move ahead. We thus do not have before us the difficult question whether every member of a collective action, including the named plaintiff(s), must file a separate document entitled a Consent, or if it is enough for the named plaintiff(s) to indicate in the complaint that they affirmatively wish to proceed in that capacity. We conclude, however, that the court erred by refusing to allow Smith to proceed on her individual claims, and so we vacate that part of its judgment and remand for further proceedings.
I
PTI is an Indiana-based corporation that provides ground transportation to the people who service the nation‘s railroads. By providing 24-hour shuttles and drivers, PTI helps railroad crews and train workers get to their destinations and back home after their shifts’ end. Peggy Jo Smith began her career there as a driver. Two years later, she was promoted to an administrative role. But a few months into this new position, Smith began to suspect that PTI was not paying her what she was due. Unable to secure what she perceived to be her proper wages—particularly her overtime wages—she resigned on August 20, 2013. On December 26, 2013, Smith filed this lawsuit.
The Fair Labor Standards Act authorizes a worker to sue a noncompliant employer on “behalf of [her]self or themselves and other employees similarly situated.”
In contrast to the more familiar mechanisms for class action contained in
In determining when an action is commenced for the purposes of section 255 of this title [i.e., the statute of limitations], an action commenced on or after May 14, 1947 under the Fair Labor Standards Act of 1938, as amended ... shall be considered to be commenced on the date when the complaint is filed; except that in the case of a collective or class action instituted under the Fair Labor Standards Act of 1938, as amended ..., it shall be considered to be commenced in the case of any individual claimant—
(a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or
(b) if such written consent was not so filed or if his name did not so appear—on the subsequent date on which such
written consent is filed in the court in which the action was commenced.
Over one hundred current and former PTI employees opted into Smith‘s collective action by filing timely written consent forms. But Smith herself, having already filed her complaint, did not submit an additional written consent form indicating her desire to join her own suit. As we indicated, the district court regarded this as the kiss of death for both her collective and her individual actions, and it dismissed the case, paving the way for this appeal.
II
Before turning to Smith‘s individual claim, we think it prudent to say a few words about our decision not to address the collective aspect of her case. The question whether a named plaintiff, or plaintiffs, must file a separate written consent form in addition to indicating their desire to proceed collectively in the pleadings turns out to be a complex one. Some things, however, are clear. Congress chose the opt-in format for FLSA collective actions because it wished to “prevent the filing of claims on behalf of a large group of unnamed and nonparticipating plaintiffs.” Anderson v. Montgomery Ward & Co., Inc., 852 F.2d 1008, 1016 (7th Cir. 1988). The written consent forms assure the court that the signers “want to have their rights adjudicated in [a collective] proceeding or be represented by counsel chosen by other plaintiffs.” Harkins v. Riverboat Servs., Inc., 385 F.3d 1099, 1101 (7th Cir. 2004). A filed written consent is “important” because it protects plaintiffs from binding judgments obtained by counsel whom they may not fully trust. Id.
The named representative, however, differs in certain ways from the other members of the group. Note, for example, the somewhat awkward language of section 256(a) of the statute, reproduced above, and compare it to the language of section 256(b). Section 256(a) establishes a rule for specifically named plaintiffs whose written consent to become a party plaintiff is filed with the complaint, while subpart (b) addresses the unnamed members of the group. We leave for another day the question whether the statute requires that written consent to be in a separate document, or if instead it is enough if the complaint itself clearly indicates the intent of the plaintiff to proceed collectively. Complaints, after all, are either signed by the plaintiff‘s attorney or personally, if the litigant is unrepresented. See
But the language of section 256(a), which admittedly addresses not the processing of a collective action, but instead the statute of limitations, can be read otherwise. Our caselaw is somewhat inconsistent on the question whether a separate form must be filed. We have held that in a representative action brought under the Age Discrimination in Employment Act—a statute that follows the FLSA opt-in model,
The state of the law on this issue is thus far too unsettled for us to reach out and decide an issue that the appellant herself has barely briefed. Collective actions under the FLSA are relatively common, and we are confident that this issue will return to us in a fully briefed form at some point.
III
We turn, then, to the heart of the present case: whether the district court erred by dismissing Smith‘s individual claim along with her collective claims. The question is whether section 216(b) authorizes “dual capacity” suits, in which a plaintiff sues simultaneously as a group representative and as an individual. The answer is yes, for a number of reasons.
The Federal Rules of Civil Procedure permit a party to “join, as independent or alternative claims, as many claims as it has against an opposing party.”
To determine whether Smith has stated individual claims in her complaint against PTI, we must conduct a de novo review to determine whether she has included enough facts to put PTI on notice of her individual claims. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In contrast, when reviewing a decision rendered on summary judgement, we need not limit ourselves to the pleadings. We may look at the full record that was developed on summary judgment, taking it in the light most favorable to Smith, to see if a trier of fact could rule in her favor. Moreover, to the extent that materials that were added to the record later show that PTI was aware of Smith‘s intention to pursue her individual claims, we also may rely on those materials.
Read in the light most favorable to Smith, we conclude that the second amended complaint contained sufficient factual allegations related to her individual claims to put PTI on notice that she intended to sue it both in an individual and a representative capacity. She explicitly stated as much in the caption of both her original complaint and in her second amended complaint, which was the operative pleading.
Paragraphs 21 through 33 of Smith‘s second amended complaint further demonstrate the district court‘s error. There the complaint describes with specificity Smith‘s role at PTI, her duties, and her pay and time allocations. Several of these allegations are unique to Smith and are not incorporated into the parts of the complaint that refer to the group.
For example, Paragraph 25 alleges that Smith “was encouraged to make over-the-road trips to supplement” any shortfall in her wages but was “forbidden from working as a driver so that she would be working over 40 hours in any week.” Paragraph 29 alleges that Smith was “paid $375 per week on a salary basis, for the performance of executive or managerial duties, regardless of the number of hours she was actually required to work to accomplish her duties.” Paragraph 33 explains how, after PTI began requiring more extensive time logging, Smith “was told not to submit claims for overtime, as that was what caused her predecessor to be terminated [sic], and that she would not be paid for such overtime.” And in the complaint‘s prayer for relief, it is “plaintiff Peggy Jo Smith, and all other similarly situated [employees]” that request a favorable judgment (emphasis added). The second amended complaint sufficed to put PTI on notice that Smith was, among other things, pursuing her personal claim against the company. But there‘s more.
On August 14, 2014, defendant‘s counsel deposed Smith and obtained the following clarification:
Q: At the top of Exhibit 1, Ms. Smith, on the very first page, on the top left, it says Peggy Jo Smith, in capital letters. Do you see that?
A: Yes.
Q: It says individually. What do you understand that means? That you‘re individually suing the defendants?
A: Yes.
Q: And then it says, and Peggy Jo Smith on behalf of similarly situated individuals. Do you see that?
A: Yes.
Dkt. 210:6 at 18. Then a few years later, when moving to decertify the class, defendant‘s counsel implored the district court to “grant PTI‘s motion to decertify this collective action, dismiss the Opt Ins without prejudice, and allow Smith‘s claims to proceed individually.” Dkt. 217 (Jan. 20, 2017).
Nothing more need be said. The operative complaint and later developments in the case indicate that PTI was under no illusions about Smith‘s intentions to bring individual claims. Regardless of what happens to the collective action, she is entitled to proceed individually.
We VACATE the district court‘s summary judgment order in part and REMAND with instructions to permit Smith‘s individual claims to proceed. Each side is to bear its own costs on appeal.