SCHWARTZ et al v. VICTORY SECURITY AGENCY, L.P.
ORDER GRANTING 6 Defendant's Motion to Dismiss. Plaintiffs' claim for uniform maintenance work is DISMISSED WITH PREJUDICE. Plaintiffs' remaining claims are DISMISSED WITHOUT PREJUDICE. Plaintiffs may file an Amended Complaint as to their remaining claims on or before June 29, 2011. Signed by Judge Arthur J. Schwab on 6/14/2011. (lcb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DORA SCHWARTZ, ET AL.,
VICTORY SECURITY AGENCY, LP,
MEMORANDUM ORDER RE: DEFENDANT’S MOTION TO DISMISS
(Doc. No. 6)
Presently before this Court is Defendant‟s Motion to Dismiss Plaintiffs‟ Complaint.1
Doc. No. 6. The Court has reviewed Plaintiffs‟ Complaint (Doc. No. 1), Defendant‟s Motion to
Dismiss (Doc. No. 6) and Brief in Support Thereof (Doc. No. 7), and Plaintiffs‟ Brief in
Opposition to Defendant‟s Motion to Dismiss (Doc. No. 14). For the reasons that follow,
Defendant‟s Motion to Dismiss will be granted.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, at this stage the Court
accepts all of the factual allegations in the Complaint as true and all reasonable inferences are
drawn in Plaintiffs‟ favor. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Therefore, the facts of the case are as follows:
The Court has subject-matter over this matter pursuant to 29 U.S.C. § 216(b) and jurisdiction
over Plaintiffs‟ claims pursuant to 28 U.S.C. § 1331. Venue is proper in this District pursuant to
28 U.S.C. §1391(b).
Plaintiffs and the Class members were or are currently employees of Defendant. Doc.
No. 1 ¶ 8. Throughout the relevant time period, Defendant expected Plaintiffs “to be available to
work before commencement of their shift, during their promised meal break and after completion
of their assigned shift for work-related tasks.” Id. at ¶ 17. Plaintiffs performed pre-shift work
including: receiving pass down instructions, checking equipment, reviewing post orders,
collecting schedules, meeting with supervisors, guarding, monitoring, patrolling, inspecting, and
surveying. Id. at ¶ 19. Plaintiffs regularly performed post-shift work that included: preparing
logs and event reports, collecting schedules, meeting with supervisors and providing pass down
instructions. Id. at ¶ 29. Such work was undertaken by Plaintiffs for approximately 15-30
minutes of pre-shift work each day and 15 minutes to two hours of post-shift work per week. Id.
at ¶¶ 26, 36. Defendant knew that such work was regularly performed because “Defendant‟s
agents regularly encouraged, instructed, suffered and permitted” Plaintiffs to perform this work
and observed them doing so. Id. at ¶¶ 22, 31.
Plaintiffs did not receive full compensation for the pre-shift and post-shift work that they
performed because Defendant‟s timekeeping and pay practices improperly placed the burden on
Plaintiffs. Id. at ¶ 23, 33. Defendants also failed to implement any rules, systems or procedures
to prohibit Plaintiffs from performing such work or to ensure that they were properly paid for
such work. Id. at ¶ 24, 34.
Defendant also maintained a policy and practice that required Plaintiffs to maintain a
professional appearance in the work place. Id. at ¶ 39. Plaintiffs were given fewer work
uniforms than the number of shifts they worked each week. Id. at ¶ 40. As such, Plaintiffs were
required “to clean and maintain their work uniforms including: shirts, trousers, socks, shoes,
belts, hats, ties, jackets, weapons, tools and other items, in good and presentable condition.”
(“uniform maintenance work”) Id. at ¶ 41. Plaintiffs performed one to two hours of uniform
maintenance work each week at home. Id. at ¶ 49. Plaintiffs were routinely not paid for the time
they performed uniform maintenance work because they could not perform the tasks during their
shifts and because Defendant‟s time keeping and pay policies improperly placed the burden on
Plaintiffs and Defendants routinely failed to record such time. Id. at ¶ 42-43, 46.
As a result of pre-shift and post-shift work as well as uniform maintenance work,
Defendant improperly retained money that should have been paid to Plaintiffs as wages. Id. at ¶
In considering a Rule 12(b)(6) motion, federal courts require notice pleading, as opposed
to the heightened standard of fact pleading. Federal Rule of Civil Procedure 8(a)(2) requires
only “„a short and plain statement of the claim showing that the pleader is entitled to relief,‟ in
order to „give the defendant fair notice of what the . . . claim is and the grounds on which it
rests.‟” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)).
Building upon the landmark United States Supreme Court decisions in Twombly, 550
U.S. 554 and Ashcroft v. Iqbal, 129 S.Ct. 1937, 1947 (2009), the United States Court of Appeals
for the Third Circuit, recently explained that a District Court must take three steps to determine
the sufficiency of a complaint:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a
claim.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1947 (2009). Second, the court should
identify allegations that, “because they are no more than conclusions, are not
entitled to the assumption of truth.‟ Id. at 1950. Third, “whe[n] there are wellpleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for relief.‟ Id. This
means that our inquiry is normally broken into three parts: (1) identifying the
elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint
and evaluating whether all of the elements identified in part one of the inquiry are
Malleus v. George, No. 10-3539, ---- F.3d -----, 2011 WL 2044166, at *2 (3d Cir. May 26,
The third step of the sequential evaluation requires this Court to consider the specific
nature of the claim(s) presented and to determine whether the facts pled to substantiate the
claim(s) are sufficient to show a “plausible claim for relief.” “While legal conclusions can
provide the framework of a Complaint, they must be supported by factual allegations.” Id.; see
also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11.
The Court may not dismiss a Complaint (or Counterclaim) merely because it appears
unlikely or improbable that plaintiff can prove the facts alleged or will ultimately prevail on the
merits. Twombly, 550 U.S. at 556, 563 n.8. Instead, the Court must ask whether the facts
alleged raise a reasonable expectation that discovery will reveal evidence of the necessary
elements. Id. at 556. Generally speaking, a Complaint (or Counterclaim) that provides adequate
facts to establish “how, when, and where” will survive a Motion to Dismiss. Fowler, 578 F.3d at
212; see also Guirguis v. Movers Specialty Services, Inc., 346 Fed.Appx. 774, 776 (3d Cir.
2009). In short, the Motion to Dismiss should not be granted if a party alleges facts which could,
if established at trial, entitle him to relief. Fowler, 578 F.3d at 563 n.8.
This Court has reviewed Defendant‟s Motion to Dismiss (Doc. No. 6) based upon this
standard of review.
In support of its Motion to Dismiss, Defendant alleges that Plaintiffs‟ Complaint: 1) fails
to identify any specific factual allegations to support its contention that Defendant had any policy
or practice requiring employees to perform pre-shift and/or post-shift work and 2) cannot make a
Fair Labor Standards Act (“FLSA”) claim for “uniform maintenance work” because such
activities are not “integral and indispensible” to a “principal activity” as required by the Portal to
Portal Act, 29 U.S.C. § 254. Doc. No. 7.
A. Pre-Shift and Post-Shift Work
To state a claim for unpaid overtime wages under the FLSA, “a plaintiff must allege that:
(1) the defendant was „engaged in commerce‟ as that phrase is defined by the FLSA; (2) he was
an „employee‟ as defined by the FLSA; and (3) he worked more than forty hours in a week but
was not paid overtime compensation for the hours worked in excess of forty.” Mell v. GNC
Corp., 2010 U.S. LEXIS 118938, at *15 (W.D. Pa. Nov. 9, 2010) (Standish, J.). The first two
criteria are not in dispute and Defendant‟s main argument is that Plaintiffs have not pled
sufficient facts to support a claim for unpaid overtime pre- or post-shift work.
Defendant contends that Plaintiffs‟ claim for pre-shift and post-shift work should be
dismissed because Plaintiffs have “failed to assert any factual allegations to support its
conclusory statements that Victory had a policy or practice requiring their employees to perform
pre-shift and post-shift work for which they were not paid.” Doc. No. 7, 5. The Court notes that
the United States Court of Appeals for the Third Circuit has not explicitly addressed how
precisely the third element must be alleged in the Complaint. See Mell, 2010 U.S. Dist. LEXIS
118938, at * 15.
Here, taking Plaintiffs‟ factual allegations as true, Defendants “knew that Plaintiffs and
the Class members . . . regularly performed pre-shift (and post-shift) work because Defendant‟s
agents regularly encouraged, instructed, suffered, and permitted Plaintiffs and the Class members
to perform this work and observed this work being performed on a regular basis.” Doc. No. 1, ¶
However, beyond Plaintiffs‟ inconsistent allegations regarding Defendant‟s time keeping
practices and procedures, Plaintiffs do not detail how Defendant‟s failed to compensate them for
pre- and post-shift work. Plaintiffs first contend that Defendant “routinely failed to record all of
the time Plaintiffs and Class members” spent on pre- and post-shift work. Doc. No. 1 ¶ 20, 30.
However, they also inconsistently allege that “Defendant‟s timekeeping and pay practices
improperly placed the burden on Plaintiffs and Class members to ensure that their” pre- and postshift work was properly recorded. Id. at ¶ 23 and 34. Such allegations are inconsistent and do
not sufficiently detail how Defendant‟s time keeping practices violated the FLSA. Therefore,
Defendant‟s Motion to Dismiss will be granted as to Plaintiffs‟ claims for unpaid pre- and postshift work. Because Plaintiffs‟ claim could possibly be cured with further factual allegations, the
claim will be dismissed without prejudice.
B. Uniform Maintenance Work under the FLSA
The FLSA requires that employees are paid for all hours worked, including overtime for
any hours worked over 40 in a workweek. See 29 U.S.C. §§ 206-207. Plaintiffs allege that
Defendant maintained policies and practices that required them to clean and maintain their
uniform (“uniform maintenance work”) for approximately one to two hours a week. Doc. No. 1,
¶¶ 39-41, 49. Plaintiffs further allege that Defendant knew that Plaintiffs performed such work
and that they were not compensated for the time. Doc. No. 1, ¶ 45. Defendants contend that
Plaintiff‟s fail to state a claim for “uniform maintenance work” because such claims are barred
by the Portal to Portal Act. Doc. No. 7, 9-14.
The Portal to Portal Act provides certain exclusions for which an employer is not
required to compensate an employee under the FLSA. Such pertinent exceptions are identified
(a) Activities not compensable
Except as provided in subsection (b) of this section, no employer shall be
subject to any liability or punishment under the Fair Labor Standards Act of
1938, . . . on account of the failure of such employer to pay an employee
minimum wages, or to pay an employee overtime compensation, for or on
account of any of the following activities . . . .
walking, riding, or traveling to and from the actual place of
performance of the principal activity or activities which
such employee is employed to perform, and
activities which are preliminary to or postliminary to said
principal activity or activities,
which occur either prior to the time on any particular workday at which such
employee commences, or subsequent to the time on any particular workday at
which he ceases, such principal activity or activities.
29 U.S.C. § 254(a).
The United States Supreme Court has defined preliminary and postliminary activities as
those which are not “an integral and indispensible part of the principal activities.” Steiner v.
Mitchell, 350 U.S. 247, 256 (1956). Defendant argues that Plaintiffs‟ allegations of
uncompensated “uniform maintenance work” are preliminary and postliminary activities and
therefore, Plaintiffs claim for relief from such activities should be dismissed. Doc. No. 7, 9-14.
The Court notes that there is no identifiable United States Court of Appeals for the Third
Circuit case law which indicates whether “uniform maintenance work” are “integral and
indispensable” duties under the FLSA. The Court finds the analogous factual circumstances and
reasoning in Musticchi v. City of Little Rock, Ark., 734 F. Supp. 2d 621, 630-32 (E.D. Ark. 2010)
to be persuasive. The following paragraph is especially persuasive:
The Second Circuit has recognized that “indispensable is not synonymous with
integral. Indispensable means necessary . . . . Integral means, inter alia, essential
to completeness; organically joined or linked composed of constitutes parts
making a whole.” Gorman v. Consolidated Edison Corp., 488 F.3d 586, 592 (2d
Cir. 2007)(internal quotations and citations omitted). The court added that
“[s]harpening the knife is integral to carving a carcass, Mitchell v. King Packing
Co., 350 U.S. 260, 263 (1956); powering up and testing an x-ray machine is
integral to taking x-rays, Kosakow v. New Rochelle Radiology Assocs., P.C., 274
F.3d 707 (2d Cir. 2001); and feeding, training and walking the dog is integral to
the work of a K-9 officer, Reich v. N.Y. City Transit Auth., 45 F.3d 646 (2d Cir.
1995).” Id. Relying on Gorman, the Ninth Circuit in Bamonte stated that if “an
activity is indispensable [it] does not necessarily mean that the activity is integral
to the work performed.” Bamonte, 598 F.3d at 1232. Thus, if an activity is not
essential to complete the employee‟s principal task the employee is not entitled to
compensation for the activity pursuant to the Portal-to-Portal Act.
Here, as in Musticchi, 734 F. Supp. 2d 621 at 631, while Plaintiffs may have been
required to wear and therefore maintain their uniforms, such actions were not integral and
indispensible to Plaintiffs‟ principal activity, providing security. As such, Defendant‟s Motion to
Dismiss Plaintiffs‟ claim for uniform maintenance will be granted. Because this claim cannot be
cured with further factual allegations, amendment of this claim would be futile and therefore this
claim will be dismissed with prejudice.
AND NOW, for the reasons set forth in this Memorandum Order filed this 14th day of
June 2011, IT IS HEREBY ORDERED that Defendant‟s Motion to Dismiss (Doc. No. 6) will be
Plaintiffs‟ claims for unpaid pre-shift and post-shift overtime are DISMISSED
WITHOUT PREJUDICE. Plaintiffs shall have until June 29, 2011 to file an Amended
Complaint as to these claims pursuant to Federal Rule of Civil Procedure 15(a)(2).
Plaintiffs‟ claim for unpaid uniform maintenance is DISMISSED WITH PREJUDICE.
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge
All Registered ECF Counsel and Parties