Hendrix v. City of Yazoo City, Miss., Civ. A. No. J89-0272(L).

744 F. Supp. 1412

E.L. HENDRIX, et al., Plaintiffs, v. The CITY OF YAZOO CITY, MISSISSIPPI, Defendant.

Civ. A. No. J89-0272(L).

United States District Court, S.D. Mississippi, Jackson Division.

October 4, 1989.

Elizabeth L. Gilchrist, Jackson, Miss., for plaintiffs.

Gary E. Friedman, Miller, Milam & Moeller, Jackson, Miss., for defendant.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

Plaintiffs, firefighters employed by defendant, Yazoo City, Mississippi, brought this action alleging violations of Section 8 of the 1985 Amendments to the Fair Labor Standards Act (FLSA). Presently before the court is defendant's motion to dismiss. Plaintiffs have responded to the motion, and the court has considered the memoranda submitted by the parties in ruling on the motion.

Section 7 of the FLSA, 29 U.S.C. § 207 (1965 & Supp.1989), establishes minimum wages and overtime to be paid by certain employers. In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), the Supreme Court, overruling National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), held that the FLSA applies to state and local governments. In response to this change in the law, Congress passed the 1985 Amendments to the FLSA, Pub.L. No. 99-150, 99 Stat. 791,¹ one purpose of which was to ease the financial stress on local governments by delaying for one year, until April 15, 1986, the applicability of the FLSA. See S.Rep. No. 357, 99th Cong., 1st Sess. 7-8, reprinted in 1985 U.S.Code Cong. & Admin.News 651, 655-56. The Amendments also prohibited discrimination by state and local governments against employees seeking the protection of the minimum wage and overtime provisions of the Act:

A public agency which is a State, political subdivision of a State, or an interstate governmental agency and which discriminates or has discriminated against an employee with respect to the employee's wages or other terms or conditions of employment because on or after February 19, 1985, the employee asserted coverage under Section 7 ... shall be held to have violated Section 15(a)(3) of such Act....

29 U.S.C. § 215 note (Supp.1989) (hereinafter referred to as Section 8). Section 15(a)(3) provides that it shall be unlawful

to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

29 U.S.C. § 215(a)(3).

The facts as alleged by plaintiffs and taken as true for the purposes of this motion indicate that after the Garcia decision but before April 15, 1986, plaintiffs and their representatives inquired of defendant as to how it would meet the requirements of the Act. In response, defendant unilaterally reduced plaintiffs' base wage rates, effective April 15, 1986, so as to avoid the increase in labor costs that compliance with the Act's overtime provisions would have caused. Three years and one month later, in May 1989, plaintiffs filed this suit against defendant, alleging that in reducing plaintiffs' base wage rates defendant had discriminated against them in violation of Section 8.²

Defendant has moved to dismiss, contending that plaintiffs' suit was not filed within the limitations period provided by statute. The statute of limitations for claims brought under the FLSA for nonwillful violations is two years from the date the cause of action accrues and three years for willful violations. 29 U.S.C. § 255(a). Defendant argues that plaintiffs' claims accrued on the date on which the wage reduction became effective, and therefore plaintiffs' suit, which was filed three years and one month later, is untimely. Plaintiffs, on the other hand, argue that defendant's acts constitute a continuing violation such that as long as the reduced base wage rates remain in effect, a new cause of action accrues each time defendant pays plaintiffs the lowered wage.

The judicially-created doctrine of continuing violations, although most frequently applied in discrimination cases, has been used in cases involving a variety of statutory violations. The doctrine has at least two different applications. One has the effect of allowing recovery for violations which occurred either before the relevant statute was passed or outside of the applicable limitations period, if those violations are so closely related to violations occurring after the effective date of the statute or within the limitations period that they may be said to constitute a single, continuing violation. Because at least a portion of the continuing violation occurs within the applicable period, a plaintiff may recover for the continuing violation in its entirety. See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (complaint timely as to all five incidents of racial steering in violation of Fair Housing Act where filed within 180 days of last four incidents); Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554 (5th Cir.1985) (policy against promoting women constituted continuing violation of Title VII such that charge filed within 180 days of last failure to promote was timely as to other such failures); Berry v. Board of Supervisors, 715 F.2d 971 (5th Cir.1983) (where some discriminatory acts occurred within 180 days before filing of EEOC complaint, plaintiff could recover for all acts), cert. denied, 479 U.S. 868, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986); New Port Largo, Inc. v. Monroe County, 706 F.Supp. 1507 (S.D. Fla.1988) (statute of limitations for Section 1983 and 1985 claims tolled where actions occurring outside of statutory period part of same "continuing wrong" as later violations); Ferner v. Village of Sheffield, 656 F.Supp. 1017 (N.D.Ohio 1987) (where some acts in violation of plaintiff's first amendment rights occurred within limitations period, plaintiff could recover for all).

Another application of the doctrine, and the one most relevant to the case sub judice, involves a determination that the applicable statute of limitations begins to run at a point in time subsequent to the initial violation. Typically in such a case, the plaintiff will have filed his complaint outside of the limitations period as calculated from the date of the first violation. Nevertheless, if he can demonstrate that defendant's subsequent acts constitute a continuing violation, the complaint will be considered timely, at least with regard to those acts occurring within the limitations period. See, e.g., Jackson v. Galan, 868 F.2d 165 (5th Cir.1989) (repeated garnishment of plaintiff's wages constituted continuing violation of due process rights).

The critical difference between these two applications of the doctrine is that in the former the issue is whether there is a particular relationship among defendant's separate violations, whereas in the latter application the real question is whether defendant's subsequent acts constitute any violation at all. A review of cases involving this latter type of continuing violation indicates that this question is not easily answered, as the distinction between a one-time, discrete violation that merely continues to adversely affect the plaintiff and a series of continuing violations is a difficult one. For example, in cases of sex or race discrimination involving disparate wages, the established rule is that a new cause of action accrues with each payday on which the disparate wages are paid. See, e.g., Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (race discrimination under Title VII); Jenkins v. Home Ins. Co., 635 F.2d 310 (4th Cir.1980) (sex discrimination under Title VII and Equal Pay Act); Hodgson v. Behrens Drug Co., 475 F.2d 1041 (5th Cir.1973) (sex discrimination under Equal Pay Act); Ottaviani v. State University of New York at New Paltz, 679 F.Supp. 288 (S.D. N.Y.1988) (sex discrimination under Equal Pay Act). Similarly, the failure of an employer to pay minimum wages or overtime in accordance with Section 7 of the FSLA constitutes a continuing violation, such that a new cause of action accrues with each paycheck. Halferty v. Pulse Drug Co., 821 F.2d 261 (5th Cir.1987); Beebe v. United States, 226 Ct.Cl. 308, 640 F.2d 1283 (1981); Blair v. United States, 15 Cl.Ct. 763 (1988); Harris v. United States, 13 Cl.Ct. 363 (1987).

In other situations courts have characterized a defendant's subsequent acts as merely giving effect to past violations, rather than constituting present violations. For example, in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), a flight attendant was discharged from employment for discriminatory reasons. Subsequently, she sought reinstatement several times, but was unsuccessful. However, approximately four years after discharging her, the airline rehired her. Because it considered her a new employee, the airline refused to give her seniority credit for her past service. She then brought suit, challenging the company's refusal to credit her with the past employment time. Plaintiff conceded that her suit was not timely filed with regard to the discharge. The issue before the Court, therefore, was whether a new cause of action had accrued at the time the defendant rehired the plaintiff and applied the seniority system to her. The Court agreed with the plaintiff that the airline's seniority system, although facially nondiscriminatory, gave present effect to a past illegal act and perpetuated the consequences of discrimination. The Court observed, however, that the "critical question" in such a case is "whether any present violation exists." Id. at 558, 97 S.Ct. at 1889. The conclusion of the Court was that the failure to give the plaintiff seniority credit for her past service with the company did not constitute a...