Bergemann v. Rhode Island Dep't of Envtl. Mgmt.

18 Wage & Hour Cas.2d (BNA) 883

665 F.3d 336

Scott BERGEMANN et al., Plaintiffs, Appellants,

v.RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT and Gina M. Raimondo, in her Capacity as Treasurer of the State of Rhode Island, Defendants, Appellees.

No. 11–1407.

United States Court of Appeals, First Circuit.

Heard Nov. 8, 2011.Decided Dec. 20, 2011.

Jeffrey D. Sowa, with whom Marshall M. Raucci and LaPlante Sowa Goldman were on brief, for appellants.

Thomas A. Palombo, Assistant Attorney General, for appellees.

Before LIPEZ, SELYA and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

This appeal poses a question that has divided the circuits. The question, which is a matter of first impression for this court, is whether a state waives its sovereign immunity to a pleaded claim by removing that claim to the federal court. We conclude that a waiver occurs only if the removal confers an unfair advantage on the removing state. Because the district court reached this same conclusion and because its other rulings are unimpugnable, we affirm the judgment below.

I. BACKGROUND

This case is the latest in a series of courtroom assaults launched by a cadre of Rhode Island environmental police officers (EPOs) against their employer, the Rhode Island Department of Environmental Management (DEM), a department of state government. The EPOs receive collectively bargained wages and benefits. They have long been dissatisfied with the DEM's handling of certain wage and benefit matters.

The claims asserted in this case grow directly out of the EPOs' unorthodox work schedules. To ensure that an adequate number of officers are on duty every day of the year, the DEM requires EPOs to work staggered four-day-on, two-day-off schedules. Under this paradigm, an EPO must work any holiday that coincides with a scheduled work day. In such an instance, the collective bargaining agreement (CBA) between the state and the EPOs' union provides that the affected EPO will receive compensation over and above his usual salary. The EPOs' complaint about this arrangement is that the extra holiday pay is not being factored into the calculation of their retirement benefits.

To understand this claim, it is important to note that the EPOs participate in a state employee retirement plan, which entitles them to employer-paid pension contributions that are based on their total “compensation.” See R.I. Gen. Laws § 36–10–2. The EPOs also contribute to their own pensions a percentage of their “compensation.” See id. § 36–10–1. The EPOs complain that the state does not treat their extra holiday pay as “compensation” within the definition prescribed by the relevant statute, see id. § 36–8–1(8), and therefore their pensions are being underfunded.

The EPOs' next claim stems from another unique aspect of their work schedules: the requirement that they remain on call during their lunch breaks. The EPOs contend that this arrangement entitles them to compensation for the time spent having lunch. Counting these intervals, the EPOs estimate that they work on average 37.5 hours per week ¹ yet are paid a weekly wage based on only 35 hours. Accordingly, they claim an entitlement to back pay for the allegedly unpaid two-and-one-half hours per week.

The state opposes both the holiday pay and lunch break claims. It relies on the statutory definition of “compensation” and the language and history of the CBA to argue that it is in compliance with its retirement-plan obligations. Further, the state points out that the EPOs are not hourly workers but, rather, receive annual salaries that compensate them for both their hours actually worked and their lunch periods.

With these grievances in the forefront, the EPOs sued the DEM and Rhode Island's General Treasurer (collectively, the state) in a Rhode Island state court. Their complaint asserted that the state's failure to compensate them for their lunch periods transgressed the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201–219, and breached the terms of the CBA; that the state's refusal to include the extra holiday pay in the calculation of pension contributions violated the relevant provisions of state law; and that the state's noncompliance with its statutory and collectively bargained obligations had resulted in its unjust enrichment. Seizing on the FLSA claim, the state removed the action to the federal district court. See 28 U.S.C. §§ 1331, 1441(a). The state then sought dismissal of the FLSA claim on immunity grounds.

The district court determined that the state was immune from suit on the FLSA claim. See Bergemann v. Rhode Island (Bergemann I ), 676 F.Supp.2d 1, 5–9 (D.R.I.2009). Accordingly, the court dismissed that claim. See id. at 9. The court retained supplemental jurisdiction over the remaining claims, see 28 U.S.C. § 1367, and allowed them to go forward.

Following the close of discovery, the parties cross-moved for summary judgment. The district court concluded that the EPOs had received the full measure of benefits to which they were entitled under the CBA and state law. See Bergemann v. Rhode Island (Bergemann II ), C.A. No. 09–150, 2011 WL 1042748, at *7–10 (D.R.I. Mar. 18, 2011). Consequently, it granted the state's motion and denied the EPOs' cross-motion. Id. at *12.

This timely appeal ensued. In it, the EPOs challenge both the dismissal of their FLSA claim and the entry of summary judgment on their other claims.

II. THE FLSA CLAIM

We review the district court's dismissal of the FLSA claim de novo. See McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir.2006). In performing that task, we take as true all well-pleaded factual allegations contained in the complaint and cede all reasonable inferences therefrom to the plaintiffs. Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12, 16 (1st Cir.2006).

In the main, states are immune from claims brought by private persons in federal courts. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); see U.S. Const. amend. XI. Yet, this immunity is not absolute. A state may waive immunity from suit. Sossamon v. Texas, ––– U.S. ––––, 131 S.Ct. 1651, 1658, 179 L.Ed.2d 700 (2011). Alternatively, Congress may abrogate a state's immunity pursuant to its Fourteenth Amendment powers. See Alden v. Maine, 527 U.S. 706, 756, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). “But absent waiver or valid abrogation, federal courts may not entertain a private person's suit against a State.” Va. Office for Prot. & Advocacy v. Stewart, ––– U.S. ––––, 131 S.Ct. 1632, 1638, 179 L.Ed.2d 675 (2011).

Congress has not abrogated Rhode Island's immunity from FLSA claims. See Mills v. Maine, 118 F.3d 37, 48 (1st Cir.1997). The relevant question, then, is whether Rhode Island has waived its immunity.

Leaving to one side waivers that occur by reason of a state's participation in federal programs that require a surrender of sovereign immunity, see, e.g., Petty v. Tenn.–Mo. Bridge Comm'n, 359 U.S. 275, 280–82, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), a state may waive immunity in one of two ways. First, a state may waive its immunity expressly; that is, by unequivocally expressing its consent to suit. Sossamon, 131 S.Ct. at 1658. Second, a state may waive its immunity impliedly; that is, by engaging in affirmative conduct during litigation sufficient to evince consent to suit. See New Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir.2004). The dispute in this case centers on waiver by conduct.

As a general proposition, waiver by litigation conduct requires a showing that a state has “voluntarily invoke[d]” the jurisdiction of the federal courts. Coll. Sav. Bank v. Fla. Prepaid Postsec. Educ. Expense Bd., 527 U.S. 666, 675–76, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); see Gunter v. Atl. Coast Line R.R., 200 U.S. 273, 284, 26 S.Ct. 252, 50 L.Ed. 477 (1906) (explaining that “where a state voluntarily become[s] a party to a cause, and submits its rights for judicial determination, it will be bound thereby, and cannot escape the result of its own voluntary act by invoking the prohibitions of the 11th Amendment”). A state voluntarily invokes federal jurisdiction when, for example, it files a claim in the bankruptcy court, Gardner v. New Jersey, 329 U.S. 565, 574, 67 S.Ct. 467, 91 L.Ed. 504 (1947), or when it chooses to intervene in federal-court litigation, Clark v. Barnard, 108 U.S. 436, 447–48, 2 S.Ct. 878, 27 L.Ed. 780 (1883).

Refined to its essence, waiver by litigation conduct represents a kind of tit for tat: a state's decision to avail itself of a federal forum as a means of garnering a material benefit that otherwise would not be available to it is deemed to betoken a willingness to subject itself to the federal court's jurisdiction with respect to the particular claim or claims at issue. See Gunter, 200 U.S. at 284, 26 S.Ct. 252. Put in colloquial terms, the state must take the bitter with the sweet.

In this instance, Rhode Island has neither asserted a federal-court claim nor intervened in an ongoing federal proceeding. It did, however, remove the action brought by the EPOs to the federal district court. The EPOs contend that, by so doing, the state waived its immunity to their embedded FLSA claim.

This contention is anchored in the Supreme Court's decision in Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). There, an employee of a state university sued Georgia in a state court pursuant to 42 U.S.C. § 1983 and the Georgia Tort Claims Act (GTCA), Ga.Code Ann. §§ 50–21–20 to 50–21–37. By statute, Georgia had waived its immunity with respect to GTCA claims brought in state court but not with respect to those brought in federal court. See Ga.Code Ann. § 50–21–23(b). In a deft maneuver, Georgia removed the action on the basis of the federal section 1983 claim, see 28 U.S.C. §§ 1331, 1441(a), and then asserted its federal-court immunity to the GTCA claim. Lapides, 535 U.S. at 616, 122 S.Ct. 1640....