Crawley v. United States

Fair Labor Standards Act; Equitable Tolling

Daniel M. Rosenthal, Washington, DC, with whom were Brita C. Zacek and Linda Lipsett, Washington, DC, for plaintiffs.

Andrew Hunter, Civil Division, United States Department of Justice, Washington, DC, with whom were Brian M. Boynton, Acting Assistant Attorney General, Martin F. Hockey, Jr., Director, and Reginald T. Blades, Jr., Assistant Director, for defendant.

OPINION

NANCY B. FIRESTONE SENIOR JUDGE

Plaintiffs in these consolidated cases are Diagnostic Radiological Technologists ("DRTs") employed by the Department of Veterans Affairs ("VA"). Plaintiffs allege that they were wrongfully classified as "exempt" under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-19, and therefore did not receive overtime pay in violation of the FLSA. 2d Am. Compl. ¶¶ 27, 37, ECF No. 37. Plaintiffs also allege that they were deprived of night and weekend premium pay in violation of Title 5 of the U.S. Code. Id. ¶¶ 28, 39. On December 17, 2020, the court granted plaintiffs' motion for

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conditional certification of and notice to a nationwide collective of non-supervisory VA DRTs who were classified as exempt. Crawley v. United States, 151 Fed.Cl. 345, 346 (2020). Approximately 500 individuals have joined the conditionally-certified collective action. See Notice, ECF No. 120.

Now pending before the court is plaintiffs' motion for equitable tolling of the FLSA's statute of limitations for all plaintiffs as of October 21, 2019. Because plaintiffs have not established that equitable tolling is appropriate in these cases, plaintiffs' motion is DENIED.

I. BACKGROUND

The VA operates a network of hospitals and other facilities providing healthcare to veterans and employs, nationwide, approximately 4, 000 DRTs. Crawley v. United States, 145 Fed.Cl. 466, 448 (2019). The named plaintiffs that filed the lead case in this set of consolidated cases, Crawley v. United States, No. 19-371C, are DRTs at the Edward J. Hines, Jr. Hospital, a VA facility in Illinois. Id. The Crawley plaintiffs first filed their complaint alleging FLSA and Title 5 violations on March 11, 2019. Compl., ECF No. 1.

On October 21, 2019, the court granted conditional certification of a collective action for certain DRTs at the Hines facility only. Crawley, 145 Fed.Cl. at 448, 452. At that time, the court denied without prejudice the Hines plaintiffs' motion for nationwide conditional certification of eligible DRTs at other VA facilities, and also denied without prejudice the Hines plaintiffs' request for equitable tolling of the FLSA statute of limitations. Id. at 452.

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The parties then proceeded to discovery regarding nationwide certification. By party agreement, fact discovery on nationwide certification was originally scheduled to end on May 1, 2020, see Order at 2, ECF No. 25, but this deadline was extended several times, eventually to December 11, 2020, see Order at 2, ECF No. 51. The approximately seven-month delay was attributable to the government's difficulties in responding to plaintiffs' discovery requests due to the COVID-19 pandemic and the reorganization of the VA's human resources groups. See Crawley, 151 Fed.Cl. at 346-47. During this discovery period, DRTs from other VA facilities filed two similar lawsuits against the VA. See Platania v. United States, No. 20-444C (Compl. filed Apr. 16, 2020); Sesi v. United States, No. 20-823C (Compl. filed July 8, 2020). The court consolidated these cases with the Crawley case, adding plaintiffs from Baltimore, San Francisco, and Ohio. See Order at 2, ECF No. 51; Crawley, 151 Fed.Cl. at 347.

On December 15, 2020, the plaintiffs in the three consolidated cases filed an unopposed motion for conditional certification of a nationwide collective action. Unopp. Mot. for Conditional Certification at 1, ECF No. 56. Plaintiffs indicated that they would seek equitable tolling at a later time, but, in the interim, the parties had agreed to a cutoff date of October 21, 2016 to identify recipients of the notice-three years prior to the court's grant of conditional certification for the Hines plaintiffs. Id. at 5. On December 17, 2020, the court granted the motion for conditional certification of a nationwide collective action of non-supervisory VA DRTs classified as exempt and approved the parties' agreed notice and notice procedures. Crawley, 151 Fed.Cl. at 347-48.

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However, issuance of the agreed notice was delayed for some potential collective action members due to difficulties in locating the names and contact information for these members in the relevant VA systems. See, e.g., Joint Status Report at 1-2, ECF No. 68. As a result, plaintiffs were unable to complete the sending of notice until May 3, 2021, a delay of over 4 months. See Joint Status Report at 1, ECF No. 108; Mot. at 3-4, ECF No. 121. Potential plaintiffs had 90 days from the date their notice was mailed to opt into the collective action by returning a consent form. Crawley, 151 Fed.Cl. at 348 (approving notice procedures). The deadline for the last notices sent was approximately August 3, 2021.

On August 3, 2021, plaintiffs filed a renewed motion for equitable tolling of the FLSA's statute of limitations for all plaintiffs as of October 21, 2019, the date that the court granted conditional certification for the Hines plaintiffs and permitted discovery as to nationwide certification. Mot. at 1. The plaintiffs argue that equitable tolling is appropriate due to the substantial delays in discovery and in issuing notice to the opt-in plaintiffs through no fault or lack of diligence by plaintiffs. Id. at 4-9. In support, plaintiffs submit affidavits from five collective action members. Id., Exs. 1-5. Some of these members state that they were led to believe that their overtime pay was correct or were given incomplete information about their exemption status. See id., Exs. 3-5.

The government responds that, as an initial matter, equitable tolling is unavailable in FLSA cases against the federal government because the "FLSA statute of limitations is an element of the waiver of sovereign immunity" which is "jurisdictional," and because the statutory language of the FLSA forecloses equitable tolling. Resp. at 2-4, ECF No.

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125. Even if equitable tolling were available, the government argues, the plaintiffs have not demonstrated that equitable tolling is warranted here. Id. at 4-11.

In reply, the plaintiffs argue that equitable tolling is available against the government because tolling is available in private suits under the FLSA and because recent precedent in this court, the Federal Circuit, and the Supreme Court supports tolling. Reply at 1-6, ECF No. 128. The plaintiffs reiterate that equitable tolling is appropriate in these cases because of "an extreme delay caused by extraordinary circumstances: a global pandemic and repeated failures by the Government to comply with its discovery obligations." Id. at 6-11.

Oral argument was held on November 16, 2021.

II. LEGAL STANDARDS

The FLSA governs hourly overtime compensation for certain employees. Adams v. United States, 141 Fed.Cl. 428, 431 (2019). In 1974, Congress extended the FLSA to cover federal employees unless the employee was expressly exempted from coverage. Id. For non-exempt employees, the FLSA authorizes employees to earn overtime at not less than one and one-half times an employee's regular pay for work in excess of a forty-hour work week. 29 U.S.C. § 207(a)(1); Akpeneye v. United States, 990 F.3d 1373, 1378 (Fed. Cir. 2021).

Employers who violate the FLSA are liable to covered employees for their unpaid overtime compensation. 29 U.S.C. § 216(b). The FLSA entitles employees to bring claims for FLSA violations on behalf of themselves and employees who are "similarly situated" through an FLSA collective action. Id. The Supreme Court has held that the

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FLSA authorizes courts to issue notice to similarly situated employees, Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170-71 (1989), who may opt into the collective action.

Under the FLSA, a plaintiff's claim to recover unpaid overtime compensation must be commenced within two years of the alleged violation, unless the violation is willful, in which case the limitations period is three years. 29 U.S.C. § 255(a). A named plaintiff's claim commences "on the date when the complaint is filed." Id. § 256(a). In an FLSA collective action, an opt-in plaintiff's claim only commences "on the subsequent date on which [the opt-in plaintiff's] written consent is filed." Id. § 256(b). Thus, the FLSA recognizes that opt-in plaintiffs will file consent forms sometime after a complaint is filed and provides that the statute of limitations continues to run for opt-in plaintiffs until their written consents are filed with the court.

The "question of whether equitable tolling" of the statute of limitations "is allowed under the FLSA has not been resolved by the Supreme Court or the Federal Circuit." Moreno v. United States, 82 Fed.Cl. 387, 400 (2008). However, in Irwin v. Department of Veterans Affairs, the Supreme Court determined with regard to the statute of limitations generally that "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." 498 U.S. 89, 95-96 (1990). At the same time, the Supreme Court cautioned that equitable tolling of the statute of limitations should be applied "sparingly." Id. at 96. The Court noted that it had previously "allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the

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statutory period, or where the complainant has been induced or tricked by...