                                                                            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


      Court of Appeals of Indiana | Opinion 49A04-1509-PL-1279| February 29, 2016                  Page 1 of 11
      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.

      Court of Appeals of Indiana | Opinion 49A04-1509-PL-1279| February 29, 2016                         Page 4 of 11
[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

       Court of Appeals of Indiana | Opinion 49A04-1509-PL-1279| February 29, 2016   Page 5 of 11
       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


       Court of Appeals of Indiana | Opinion 49A04-1509-PL-1279| February 29, 2016   Page 6 of 11
       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.

       Court of Appeals of Indiana | Opinion 49A04-1509-PL-1279| February 29, 2016                        Page 7 of 11
       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,




       Court of Appeals of Indiana | Opinion 49A04-1509-PL-1279| February 29, 2016    Page 8 of 11
                        (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


       Court of Appeals of Indiana | Opinion 49A04-1509-PL-1279| February 29, 2016    Page 9 of 11
       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




       Court of Appeals of Indiana | Opinion 49A04-1509-PL-1279| February 29, 2016   Page 10 of 11
       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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