Edward Skillman v. Ivy Tech Community College

Feb 29 2016, 9:43 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher K. Starkey Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Edward Skillman, February 29, 2016
Appellant-Plaintiff, Court of Appeals Cause No.
49A04-1509-PL-1279
v. Appeal from the Marion Superior
Court
Ivy Tech Community College, The Honorable David J. Dreyer,
Appellee-Defendant. Judge
Trial Court Cause No.
49D10-1309-PL-35369
Barnes, Judge.
Case Summary
[1] Edward Skillman appeals the trial court’s grant of summary judgment in favor
of Ivy Tech Community College (“Ivy Tech”) on Skillman’s claim under the
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Indiana Wage Payment Act (“WPA”), Indiana Code Chapter 22-2-5. We
affirm.
Issue
[2] The sole restated issue we need address is whether Ivy Tech was governed by
the overtime compensation provisions of the Indiana Minimum Wage Law
(“MWL”), Indiana Code Chapter 22-2-2.
Facts
[3] In 2008, Ivy Tech hired Skillman as a senior operations analyst. Prior to
beginning work Ivy Tech provided Skillman notice of his classification as an
“Administrative Exempt, E-1” employee as defined by the Ivy Tech employee
handbook, which meant that he was not entitled to overtime compensation or
compensatory time. App. p. 11. Skillman received a set salary in addition to
benefits, paid vacation and sick time, and a paid-for cell phone and cell phone
plan.
[4] Skillman’s position required him to be on call after hours, and he received an
average of eleven after-hours calls per week. Skillman never requested payment
of overtime from Ivy Tech while he was employed. However, after Skillman
left Ivy Tech in 2013, he calculated that he was owed $108,000 in overtime for
having to work on call. He filed an action in state court seeking recovery of
that amount under the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201-209, the MWL, and the WPA. The trial court dismissed the FLSA
claim. Subsequently, Ivy Tech moved for and was granted summary judgment
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on Skillman’s state law claims. Skillman now appeals only with respect to the
state law claims.
Analysis
[5] Skillman contends he was entitled to seek recovery of overtime compensation
from Ivy Tech under the MWL and WPA,1 despite the absence of any
agreement that he was entitled to such compensation. When reviewing a trial
court’s grant of summary judgment, our standard of review is the same as it is
for the trial court. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). The
moving party must make a prima facie showing that there are no genuine issues
of material fact and that it is entitled to judgment as a matter of law. Id. If a
moving party meets this burden, then the non-moving party must come forward
with evidence establishing the existence of a genuine issue of material fact. Id.“We construe all factual inferences in favor of the non-moving party and
resolve all doubts as to the existence of a material issue against the moving
party.” Id. In reviewing a summary judgment ruling, we are limited to the
designated evidence before the trial court, see Ind. Trial Rule 56(H), but we are
not constrained by either the claims and arguments presented to the trial court
or the rationale of the trial court’s ruling, if one was stated. Id.1
Because Skillman voluntarily left Ivy Tech, his action fell under the WPA and not the Wage Claim Act,
Indiana Code Chapter 22-2-9, which governs claims for pay when an employer terminates an employee or
there is a work stoppage because of an industrial dispute. See St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele,
766 N.E.2d 699, 705 (Ind. 2002).
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[6] The trial court stated in its summary judgment ruling that Skillman was not
entitled to overtime compensation because it was never agreed to and Skillman
acquiesced in the non-overtime pay he had received over the years. We are not
bound by that reasoning, and we do not believe it is necessary to address it.
Rather, we believe there is an even more fundamental issue in this case that
warrants summary judgment in Ivy Tech’s favor, and that is Ivy Tech’s
exclusion from application of the MWL as a matter of law.
[7] The WPA “governs both the frequency and amount and employer must pay its
employee.” City of Clinton v. Goldner, 885 N.E.2d 67, 75 (Ind. Ct. App. 2008).
If an employer fails to pay wages either semimonthly or biweekly, if requested,
it may be subject to liquidated damages and attorney fees. Id.; see also Ind. Code
§§ 22-2-5-1, 22-2-5-2. Skillman’s claim that he was entitled to overtime
compensation and may collect it under the WPA is necessarily premised upon
establishing that Ivy Tech, an arm of the State,2 must pay wages in accordance
with the MWL. Indiana Code Section 22-2-2-4(k) states:
Except as otherwise provided in this section, no employer shall
employ any employee for a work week longer than forty (40)
hours unless the employee receives compensation for
employment in excess of the hours above specified at a rate not
less than one and one-half (1.5) times the regular rate at which
the employee is employed.
2
State colleges such as Ivy Tech are considered a political subdivision of the State. See Orem v. Ivy Tech State
College, 711 N.E.2d 864, 869 (Ind. Ct. App. 1999), trans. denied.
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[8] Crucially, the MWL defines “employer” as follows:
any individual, partnership, association, limited liability
company, corporation, business trust, the state, or other
governmental agency or political subdivision during any work
week in which they have two (2) or more employees. However, it
shall not include any employer who is subject to the minimum
wage provisions of the federal Fair Labor Standards Act of 1938,
as amended (29 U.S.C. 201-209).
I.C. § 22-2-2-3.
[9] In Abner v. Dept. of Health of State of Indiana, 777 N.E.2d 778, 784 n.4 (Ind. Ct.
App. 2002), trans. denied, we stated, “The State is an employer within the
meaning of the FLSA. Accordingly, it is not an employer for purposes of the
Minimum Wage Law and Employees’ argument under the Minimum Wage
Law fails.” Skillman is correct that this statement was dicta, given that we
decided the case based on lack of subject matter jurisdiction for failure to
exhaust administrative remedies. Abner, 777 N.E.2d at 785. Dicta is not
necessarily incorrect, however; we believe Abner was correct.
[10] Skillman does not dispute that Ivy Tech is governed by the FLSA. It includes
within its definition of “employee” most employees of political subdivisions of
the states, subject to certain exceptions inapplicable to Skillman. See 29 U.S.C.
§ 203(e)(2)(C). However, although state governments must comply with FLSA,
they are immune from suits by private individuals for alleged violations of
FLSA, pursuant to the Eleventh Amendment to the United States Constitution,
unless a state has waived its immunity to such suits. See Alden v. Maine, 527
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U.S. 706, 732, 119 S. Ct. 2240, 2255-56 (1999). This immunity applies not only
to actions in federal court, but actions in a state’s own courts as well. See id. at
754, 119 S. Ct. at 2266. At this point in the litigation, Skillman concedes that
FLSA applies to Ivy Tech and the State, that Ivy Tech cannot be sued in either
state or federal court for any purported violation of FLSA’s minimum wage
requirements, and that the State has not consented to suit under FLSA.
[11] Nevertheless, Skillman argues that the State is also governed by the MWL and
that he can enforce that law against the State through the WPA. In part,
Skillman contends that because he cannot recover overtime pay under the
FLSA, there should be no bar to him doing so under the MLW and WPA
because there is no risk of double recovery. Our supreme court addressed a
similar situation in Montgomery v. Board of Trustees of Purdue University, 849
N.E.2d 1120 (Ind. 2006). In that case, an employee of Purdue University
attempted to sue the University under both the Federal Age Discrimination in
Employment Act (“ADEA”) and the Indiana Age Discrimination Act
(“IADA”) after being fired. Similar to the MWL, the IADA excludes from the
definition of covered employer any person or governmental entity that is
“subject to” the ADEA. Montgomery, 849 N.E.2d at 1122 (citing I.C. § 22-9-2-
1). Our supreme court first noted that the State, while governed by the federal
law, was immune from suits for monetary damages by private citizens for
alleged violations of that law pursuant to the Eleventh Amendment. Id. at
1125. Additionally, the State’s enactment of the IADA did not represent
unequivocal consent to suit under the ADEA. Id. Furthermore, even if there
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was “lax or nonexistent” enforcement of the federal law against state
governments by the Equal Employment Opportunity Commission (“EEOC”),
the possibility of such enforcement did exist because the federal government “is
not subject to the Eleventh Amendment and can seek both monetary and non-
monetary remedies against state agencies.” Id. at 1126 (citing Bd. of Trs. of the
Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n. 9, 121 S. Ct. 955, 968 n. 9 (2001)).
“As a result, state agencies subject to EEOC enforcement are ‘subject to’ the
ADEA as that term is used in the IADA.”3 Id. “If the law imposes standards of
conduct on state employers, they are ‘subject to’ it.” Id. at 1127. And, because
state agencies are “subject to” the AEDA, they are not employers covered by
the IADA.4 Id. Our supreme court affirmed dismissal of the plaintiff’s
complaint on this basis. Id.
[12] We perceive no meaningful distinction between Montgomery and the present
case. Although the possibility of enforcement of FLSA against a state agency
may be slim to nonexistent, it does appear such enforcement could come from
the Department of Labor, which administers FLSA with respect to all covered
non-federal employees. Angelo v. U.S., 57 Fed. Cl. 100, 113 n.14 (Fed. Cl.
3
The court also discussed the possibility that a private citizen could seek injunctive relief against a state
agency under the ADEA. Montgomery, 849 N.E.2d at 1126-27. Such relief does not seem to be available
under the FLSA. See Michigan Corr. Org. v. Michigan Dept. of Corr., 774 F.3d 895, 907-08 (6th Cir. 2014). The
Montgomery court’s discussion of the possibility of injunctive relief came after it had already unequivocally
stated that the possibility of EEOC enforcement of ADEA was sufficient to make the State “subject to”
ADEA.
4
The court then addressed a “second reason” for failure of the complaint—IADA’s lack of express
authorization for an employee to seek monetary damages. Montgomery, 849 N.E.2d at 1127-31. This
discussion arguably was dicta, as the court had already affirmed dismissal of the complaint.
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2003); see also 29 U.S.C. § 216(c) (authorizing Secretary of Labor to file actions
to collect unpaid minimum wages or unpaid overtime compensation). The
Eleventh Amendment would not bar such actions against a state agency. See
Montgomery, 849 N.E.2d at 1126. In any event, it is clear that FLSA “imposes
standards of conduct” on employers such as Ivy Tech. See id. at 1127. As such,
Ivy Tech is “subject to” FLSA, necessarily meaning it also is excluded from the
definition of “employer” under the MWL.
[13] Skillman argues that finding Ivy Tech is “subject to” FLSA renders meaningless
the inclusion of “the state” as a covered employer under the MWL. We
disagree. In fact, much of the MWL could be rendered meaningless under this
argument, as many of the potential “employers” it covers will also be subject to
FLSA, not just the State. In any event, we note that FLSA contains a number
of exceptions to its definition of covered state government employees.
Specifically, FLSA does not apply to any individual:
(i) who is not subject to the civil service laws of the State,
political subdivision, or agency which employs him; and
(ii) who—
(I) holds a public elective office of that State, political
subdivision, or agency,
(II) is selected by the holder of such an office to be a
member of his personal staff,
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(III) is appointed by such an officeholder to serve on a
policymaking level,
(IV) is an immediate adviser to such an officeholder with
respect to the constitutional or legal powers of his office, or
(V) is an employee in the legislative branch or legislative
body of that State, political subdivision, or agency and is
not employed by the legislative library of such State,
political subdivision, or agency.
29 U.S.C. § 203(C). Skillman does not contend that he fell within any of these
exceptions. If he had, it is conceivable he might seek coverage under the
MWL. Furthermore, where statutory language is clear and unambiguous, the
plain language of the statute must be given effect. State v. American Family
Voices, Inc., 898 N.E.2d 293, 297 (Ind. 2008). Skillman wishes us to delete that
portion of the MWL statute stating that it does not apply to employers “subject
to” FLSA, and we will not do so.
[14] Skillman also contends that the State legislature could have amended the MWL
after the decision in Alden, holding that states are immune from private suit
under the FLSA, to clearly state whether the MWL applied to state government
agencies here in Indiana. He argues that the failure to do so evinces an intent
that State employees generally be entitled to pursue claims for overtime pay
under the MWL and WPA. If anything, we believe legislative inaction
following Alden in failing to expressly include all State employees within the
scope of the MWL, notwithstanding their largely nominal and unenforceable
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coverage under FLSA, indicates the legislature generally did not intend to allow
state employees to pursue state remedies for overtime pay under the MWL and
WPA. Cf. Fraley v. Minger, 829 N.E.2d 476, 492 (Ind. 2005) (noting doctrine of
legislative acquiescence in court decision when legislature fails to respond to
such decision). We note the general principle, “A state may not be sued in its
own courts unless it has waived its sovereign immunity by expressly consenting
to such suit through a ‘clear declaration’ of that consent.” Oshinski v. N. Indiana
Commuter Transp. Dist., 843 N.E.2d 536, 539-40 (Ind. Ct. App. 2006) (quoting
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 680,
119 S. Ct. 2219, 2228 (1999)). There has been no such “clear declaration” by
the legislature with respect to state employees and overtime compensation
under the MWL.
[15] Skillman has not established that Ivy Tech was required to pay him overtime
compensation under the MWL. Ivy Tech paid Skillman the salary it agreed to
pay him, and he has no claim for unpaid wages under the WPA as a matter of
law.
Conclusion
[16] Ivy Tech is not an “employer” for purposes of the MWL because it is “subject
to” FLSA requirements, even if Skillman cannot personally enforce FLSA
requirements against Ivy Tech. Therefore, Skillman was not entitled to
overtime compensation from Ivy Tech under the MWL and he has no cause of
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action under the WPA. We affirm the grant of summary judgment in favor of
Ivy Tech.
[17] Affirmed.
Robb, J., and Altice, J., concur.
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