Harkins, John v. Riverboat Services ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-3624
JOHN H. HARKINS, et al.,
Plaintiffs-Appellants,
v.
RIVERBOAT SERVICES, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 99 C 0123—William J. Hibbler, Judge, and
Morton Denlow, Magistrate Judge.
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ARGUED SEPTEMBER 10, 2004—DECIDED OCTOBER 6, 2004
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Before FLAUM, Chief Judge, and BAUER and POSNER, Circuit
Judges.
POSNER, Circuit Judge. The plaintiffs in this suit for
overtime pay under the Fair Labor Standards Act are 21
former employees of the defendant, which employed them
on a gambling boat; 14 of the 21 also claim that they were
fired in retaliation for making overtime claims, which
likewise is forbidden by the Act.
The boat’s home port is East Chicago, Indiana, on Lake
Michigan. Like a number of other states, Indiana permits
2 No. 03-3624
gambling only on “riverboats.” Ind. Code § 4-33-9-1. This
curiosity of American public policy has been well explained by
William Blake Bennett, “Waterborne Woes: Legal Difficulties
of Riverboat Gambling in Emerging Jurisdictions,” Nev.
Lawyer, Feb. 1985, p. 19:
Riverboat gaming undoubtedly has been chosen by
gaming interests as a means by which casino gaming
could be made more politically acceptable, both because
it is considered as a less intrusive means of operation
within a community, and because of its potential
benefits to maritime interests, especially in areas where
the shipbuilding industry has been reeling from the
effects of a depressed offshore oil industry and from
cutbacks in military vessel construction. Riverboat
gaming also conjures up romantic notions of the past
along the Mississippi River, and has been touted to the
public as a means by which to create jobs, attract tourists,
provide for economic development and enhance tax
revenues by a voluntary form of taxation, while still
avoiding the perception of casinos as a permanent part
of the fabric of a community.
The Showboat Mardi Gras Casino, on which the plaintiffs
worked, is a real ship despite its outlandish name and is
considered a “riverboat” though it plies Lake Michigan
rather than a river. Built in Florida, it sailed from its birth-
place to East Chicago under its own steam. The plaintiffs
were members of the ship’s “marine crew.” That is, they
were not waiters or croupiers, but instead were responsible
for the operation of the ship or (as comprehended within
that term) the safety of the ship’s passengers. The casino
itself is operated by Harrah’s, which hired the defendant to
staff and supervise the maritime aspect of this boat-casino
hybrid. Most of the plaintiffs, however, were not directly
involved in navigation or engine-room work, and indeed
No. 03-3624 3
spent much of their time doing the kind of housekeeping
chores that they would have done in a casino that was on
land—which, they argue, is what the Showboat Mardi Gras
Casino really is, since it spends at least 90 percent of its time
moored to a pier in East Chicago. This high incidence of
maritime inactivity is due in part to the fact that the lake is
too rough for the passengers’ taste much of the year, but
mainly, we imagine, to the passengers’ not being much in-
terested in sailing; they’re interested in gambling and are
happy to do it while the ship is moored, without having to
risk becoming seasick. (It is hard to believe that weather or
water conditions, though basically the only statutory excuses
for allowing gambling while the boat is docked, Ind. Code
§ 4-33-9-2, prevent its sailing 90 percent of the time.) When
the ship does sail, it is for short distances—indeed, without
special permission by the state’s gambling commission, a
cruise may not exceed four hours, Ind. Code § 4-33-9-3—and
so the crew never has to sleep over in the ship. Realistically,
their life differs only slightly from that of ordinary casino
workers. The Fair Labor Standards Act (FLSA) exempts
from its overtime provisions persons employed as seamen. 29
U.S.C. § 213(b)(6). The plaintiffs argue that they are not
seamen because they do not do the distinctive work of
seamen and do not work on a real ship but on a kind of
glorified houseboat.
The district court dismissed the overtime claims of 18 of
the 21 plaintiffs because no written consents by them to join
in this suit had been filed with the court before the statute
of limitations expired. The case then went to jury on the
overtime claims of the remaining three plaintiffs and on the
retaliatory-discharge claims of the 14 plaintiffs who had
made such claims. The jury awarded a verdict for the
defendant on all the claims. All 21 plaintiffs appeal.
In a collective (or, as it is sometimes called, a representa-
tive) action under the FLSA, a named plaintiff sues “in be-
4 No. 03-3624
half of himself . . . and other employees similarly situated.
No employee shall be a party plaintiff to any such action
unless he gives his consent in writing to become such a
party and such consent is filed in the court in which such ac-
tion is brought.” 29 U.S.C. § 216(b). (Compare class actions
under Fed. R. Civ. P. 23(b)(3), in which the consent of class
members is not required; instead they have a right to be
notified of the class action and to opt out of it and seek their
own remedies. Fed. R. Civ. P. 23(c)(2)(B).) The plaintiffs’
counsel asks us to overlook the failure to comply with the
statute. He argues that since all 18 were actually named as
plaintiffs in the complaint and participated in discovery,
their consent to be parties can be presumed and so the fail-
ure to file written consents for them was harmless, a mere
failure to comply with a technicality.
The statute is unambiguous: if you haven’t given your
written consent to join the suit, or if you have but it hasn’t
been filed with the court, you’re not a party. It makes no
difference that you are named in the complaint, for you
might have been named without your consent. The rule re-
quiring written, filed consent is important because a party
is bound by whatever judgment is eventually entered in the
case, and if he is distrustful of the capacity of the “class”
counsel to win a judgment he won’t consent to join the suit.
We are inclined to interpret the statute literally. No appel-
late decision does otherwise.
The importance of a strict interpretation is illustrated by
this case. Eight years after the suit was filed, Mr. Rossiello,
the class counsel, who has previously been sanctioned on
more than one occasion for his conduct of litigation, Dormeyer
v. Comerica Bank-Illinois, 226 F.3d 915, 916-17 (7th Cir. 2000)
(per curiam); Youker v. Schoenenberger, 22 F.3d 163, 169 (7th
Cir. 1994), has still not produced written consents from the
18. All, it is true, are named in the complaint as plaintiffs.
No. 03-3624 5
But some were added late, and some who appeared in the
original complaint disappeared when the complaint was
amended. Rossiello emphasizes that all the plaintiffs have
been deposed, but this hardly indicates that they wanted to
have their rights adjudicated in this proceeding or be rep-
resented by counsel chosen by other plaintiffs.
The special oddity of this suit is that had it not been
designated in the complaint as a collective action—that is,
an action on behalf not only of the named plaintiffs but also
of others similarly situated to them—there would be no
requirement of filed written consents. The requirement is
applicable only to collective actions. That is why those of the
18 who complained that they were fired in retaliation for
filing overtime claims remained parties to the retaliation
claims; those claims had not been pleaded as collective
actions. It now appears that Mr. Rossiello long ago aban-
doned any idea of suing on behalf of those employees of the
defendant whom he did not add to the complaint. Had he
made this intention clear—an intention to convert the
collective action for overtime pay to an action on behalf only
of the named plaintiffs—before the statute of limitations
expired, he would not have lost 18 of his 21 plaintiffs. Anderson
v. Montgomery Ward & Co., 852 F.2d 1008, 1018 (7th Cir.
1988); Allen v. Atlantic Richfield Co., 724 F.2d 1131, 1134-
35 (5th Cir. 1984); Morelock v. NCR Corp., 586 F.2d 1096,
1103 (5th Cir. 1978).
Anderson says that “the requirement that plaintiffs in a
representative action file a written consent with the district
court applies only to those parties who are not named as
plaintiffs in the complaint.” Id. at 1018-19. This statement, to
which Mr. Rossiello clings with the strength of desperation,
is the purest dictum. Anderson was a joint action—that is, a
suit that is not a collective action because, although there are
multiple plaintiffs, there is no claim for relief on behalf of
6 No. 03-3624
persons similarly situated to the named plaintiffs. The
character of the suit in Anderson is apparent from the court’s
citation to Allen v. Atlantic Richfield Co., supra, and from the
fact that the plaintiffs in Anderson had “hired a lawyer to file
a complaint on their behalf” and had thus “clearly indicated
their consent to suit,” while in the present case the plaintiffs’
consent to take their chances with lawyer Rossiello is
precisely what is at issue. This suit was captioned as a
representative action when first filed and, for reasons
known only to Rossiello, was never converted to a joint
action. So the 18 are out.
As for the overtime claims by the three plaintiffs for
whom written consents were filed, and which are therefore
properly before us, the contention is that the district court
should have ruled as a matter of law that they were not
seamen within the meaning of the seaman’s exemption from
the FLSA, 29 U.S.C. § 213(b)(6). The exemption is
terse—“any employee employed as a seaman”—and has
given rise to an extensive case law which contains however no
case much like this one, no crisp formula, and little discussion
of the purpose of the exemption. See, e.g., Owens v. SeaRiver
Maritime, Inc., 272 F.3d 698 (5th Cir. 2001); Pacific Merchant
Shipping Ass’n v. Aubry, 918 F.2d 1409, 1412 (9th Cir. 1990);
Knudsen v. Lee & Simmons, Inc., 163 F.2d 95 (2d Cir. 1947);
Sternberg Dredging Co. v. Walling, 158 F.2d 678 (8th Cir. 1947);
Walling v. Bay State Dredging & Contracting Co., 149 F.2d 346(1st Cir. 1945). Only two points emerge with any clarity
from the cases: the employee must do maritime-type work
on a ship that is within the admiralty jurisdiction; and deci-
sions interpreting the term “seaman” in other statutes do not
necessarily control its meaning in the FLSA. Martin v. Bedell,
955 F.2d 1029, 1035-36 (5th Cir. 1992); Donovan v. Nekton, Inc.,
703 F.2d 1148, 1150-51 (9th Cir. 1983) (per curiam); cf. Warner
v. Goltra, 293 U.S. 155, 162 (1934) (Cardozo, J.).
No. 03-3624 7
The exemption recognizes that at sea, with a normal life
impossible, working more than 40 hours a week is an ap-
propriate work norm, as distinct from the situation in most
ordinary employments, where, because 40 hours is the norm,
requiring the employer to pay time and a half for overtime
encourages him to spread the work by hiring enough workers
to minimize the need and resulting expense of overtime.
Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1543-44 (7th Cir.
1987); Donovan v. Crisostomo, 689 F.2d 869, 876 (9th Cir.
1982); Mitchell v. Brandtjen & Kluge, Inc., 228 F.2d 291, 292-
94 (1st Cir. 1955). Given the infrequency and limited duration
of the Showboat’s cruises, the application of the exemption
has far less urgency than in a case involving extended voy-
ages. Yet it would be odd to think that the crew of a ferry or
a tugboat or a sightseeing boat contains no seamen because
such boats don’t go on overnight voyages.
A consideration in probing the outer boundaries of the
exemption is that admiralty law guarantees employment
benefits to seamen that are not guaranteed by law to other
workers. The doctrine of maintenance and cure obligates
employers to provide room, board, and medical care to a
seaman injured on the job, even if through no fault of the
employer, Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438,
440-41 (2001); Greenwell v. Aztar Indiana Gaming Corp., 268
F.3d 486, 489 (7th Cir. 2001); Wills v. Amerada Hess Corp., 379
F.3d 32, 52 (2d Cir. 2004), while the Jones Act extends the
uniquely liberal employer-liability standard of the Federal
Employers Liability Act to seamen. Miles v. Apex Marine
Corp., 498 U.S. 19, 23-24 (1990); Greenwell v. Aztar Indiana
Gaming Corp., supra, 268 F.3d at 489; Wills v. Amerada Hess
Corp., supra, 379 F.3d at 47 n. 8. The plaintiffs in our case do
not “need” these special employment benefits because the
conditions of employment in a floating but rarely sailing ca-
sino are remote from those of ordinary sea duty. But it is
8 No. 03-3624
conceded that they have them anyway, and maybe they
should have to take the bitter with the sweet.
Or maybe not; for as we noted earlier, the classification of
an employee as a seaman under one statute or admiralty
doctrine does not necessarily require that he be so classified
under another one which might have a different purpose.
But when persons employed on a ship, even so atypical a
one as an Indiana gambling boat, are classified as seamen
for purposes of entitlement to the special employment bene-
fits to which seamen, including therefore these plaintiffs, are
entitled, a presumption arises that they are seamen under
the FLSA as well. Recognition of this presumption has the
incidental but not trivial advantage of making law a little
simpler.
The presumption could probably be rebutted in a case in
which a person employed on a ship was engaged in activi-
ties that had no maritime tincture whatever; an example
would be a waiter employed on a cruise ship to serve meals
to the passengers at regular hours. He might be exposed to
some of the hazards inherent in working on a ship, and this
might justify classifying him as a seaman for Jones Act and
maintenance-and-cure purposes, since both the statute and
the admiralty doctrine concern shipboard injuries. Dole v.
Petroleum Treaters, Inc., 876 F.2d 518, 522-23 (5th Cir. 1989).
But in all other respects his working conditions might be
identical to those of waiters in conventional landlocked rest-
aurants. The presumption is not rebuttable on this ground
in the present case, however, because none of the plaintiffs
is a croupier, cashier, bouncer, dealer, waiter, or entertainer;
all are (or so the jury could reasonably find) members of the
ship’s operating crew. See Martin v. Bedell, 955 F.2d at 1035-
36 (5th Cir. 1992); Worthington v. Icicle Seafoods, Inc., 774 F.2d
349, 353 (9th Cir. 1984), rev’d on other grounds, 475 U.S. 709(1986); Walling v. Keansburg Steamboat Co., 162 F.2d 405, 406-
No. 03-3624 9
08 (3d Cir. 1947). Recall the division of responsibilities
between the defendant and Harrah’s.
The plaintiffs remind us that the Department of Labor
defines “seaman” as one who performs “service which is
rendered primarily as an aid in the operation of [a] vessel as
a means of transportation, provided he performs no sub-
stantial amount of work of a different character.” 29 C.F.R.
§ 783.31. But this just means that the employee must be a
(more or less) full-time member of the marine crew, that is,
the crew that is responsible for operating the ship. A ship is
a means of transportation, and even when it is docked the
marine crew is responsible for its safe and efficient opera-
tion and maintenance—for keeping it afloat and clean,
scraping the barnacles off its hull, keeping the engines in
repair, preventing fires, etc. All this is maritime work, and
the members of the ship’s crew who do it, thus including
the plaintiffs in this case as the jury found, are seamen even
during the intervals in which the ship is moored. Walling v.
Keansburg Steamboat Co., supra, 162 F.2d at 406-08. We are
disinclined to specify as a matter of law a minimum per-
centage of time, over some specified interval (per week? per
year?), at which a ship must be at sea to trigger the seaman
exemption. We have not been given enough information to
enable us to do this, and we are worried that unless the
percentage were set very low shipowners would be unable
to predict whether their maritime workers would be
classified as seamen for FLSA purposes. That would make
it difficult for the employer to figure his costs.
We can ask the question this way: do the plaintiffs spend
their time performing duties that are necessary to the oper-
ation of the Showboat because it is a ship or because it is a
casino? See Donovan v. Nekton, Inc., supra, 703 F.2d at 1150-
51. A blackjack dealer does not become a seaman by virtue
of leaving his job at Harrah’s land-based casino and taking
10 No. 03-3624
a job at Harrah’s riverboat casino, but likewise a helmsman
does not cease to be a seaman because he transfers to a
casino boat that spends most of its time moored. It was for
the jury to decide whether the three plaintiffs whose
overtime claims survived to trial were more like the helms-
man than like the blackjack dealer.
The plaintiffs urge a number of errors in trial rulings.
None is substantial, and there is no need to burden the
opinion with a discussion of them.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-6-04