Simmons et al v. Boys & Girls Club Of The Pikes Peak Region, et al
Filing
31
ORDER granting 18 Motion for Judgment on the Pleadings by Judge R. Brooke Jackson on 9/29/17. (jdyne, )
Case 1:16-cv-01461-RBJ Document 31 Filed 09/29/17 USDC Colorado Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 16-cv-01461-RBJ
ELIZABETH SIMMONS, an individual,
Plaintiff,
v.
BOYS & GIRLS CLUB OF THE PIKES PEAK REGION, a Colorado corporation, and
JAMES M. SULLIVAN III, an individual,
Defendants.
ORDER
In August 2014 the Boys & Girls Club of the Pikes Peak Region (“Boys & Girls Club”)
hired Elizabeth Simmons as a Teen Coordinator. The position was originally classified as
exempt from the Fair Labor Standards Act’s (“FLSA”) overtime requirements, so Ms. Simmons
did not receive overtime pay. However, Boys & Girls Club later reclassified the position as nonexempt and paid Ms. Simmons $947.76, which it believes more than compensated for her prior
overtime hours.
Several months later Ms. Simmons became the Branch Director of the E.A. Tutt Club,
one of Boys & Girls Club’s locations. Although Ms. Simmons now thinks she should have
earned overtime pay, this role was also classified as exempt from the FLSA’s requirements. Ms.
Simmons further alleges that while she was Branch Director, Boys & Girls Club and its CEO,
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James M. Sullivan III, pressured her into submitting fraudulent documentation to the federal
government. She claims that she refused to do so and was fired in retaliation.
Ms. Simmons filed this lawsuit against Boys & Girls Club and Mr. Sullivan, alleging
violations of the FLSA and the Colorado Minimum Wage Order, extreme and outrageous
conduct, and wrongful discharge in violation of public policy and the False Claims Act. Am.
Compl., ECF No. 5. Defendants have moved for judgment on the pleadings on two of these
claims, ECF No. 18.
STANDARD OF REVIEW
A motion for judgment on the pleadings is reviewed under the standard applicable to a
Rule 12(b)(6) motion to dismiss. Martin Marietta Materials, Inc. v. Kansas Dep’t of Transp.,
810 F.3d 1161, 1171 (10th Cir. 2016). Therefore, in ruling on a motion for judgment on the
pleadings, courts consider whether the complaint contains “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While the
Court must accept the well-pleaded allegations of the complaint as true and construe them in the
light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002),
purely conclusory allegations are not entitled to be presumed true, Ashcroft v. Iqbal, 556 U.S.
662, 681 (2009). However, so long as the plaintiff offers sufficient factual allegations such that
the right to relief is raised above the speculative level, he has met the threshold pleading
standard. See Twombly, 550 U.S. at 556.
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ANALYSIS
Defendants move for judgment on the pleadings on plaintiff’s Colorado Minimum Wage
Order claim against Boys & Girls Club and plaintiff’s False Claims Act (“FCA”) retaliation
claim against Mr. Sullivan. The motion is granted.
The Colorado Minimum Wage Order regulates wages for Colorado employers in the
following industries: “Retail and Service,” “Food and Beverage,” “Commercial Support
Service,” and “Health and Medical.” 7 Colo. Code Regs. § 1103-1:1. As defendants point out,
however, plaintiff’s complaint does not allege that Boys & Girls Club falls into any of these four
covered industries. See ECF No. 5. On the contrary, plaintiff asserts that Boys & Girls Club
“receives significant financing from governmental grants,” id. at ¶ 21, seemingly at odds with,
for example, the requirement that it “generate[] 50% or more of its annual dollar volume of
business from” the sales of goods or services to be considered part of the Retail and Service
industry, 7 Colo. Code Regs. § 1103-1:2(A).
Plaintiff’s response brief includes a conclusory allegation that “Boys & Girls Club’s
status within the Retail and Service industry” might support a claim under the Colorado
Minimum Wage Order, yet she nevertheless “agrees to dismiss [the] claim without prejudice.”
ECF No. 19 at 1 n.1. But dismissal without prejudice would be inappropriate here. Mere “labels
and conclusions” cannot support a claim to relief, and plaintiff failed to cure this deficiency in
her first amended complaint or even identify in her brief any factual allegations that might
support this claim. Twombly, 550 U.S. at 555. Plaintiff’s second claim for relief is therefore
dismissed with prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir.
2006).
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Next, defendants argue that the FCA’s anti-retaliation provision creates a cause of action
only against employers, not individual defendants. After being amended in 2009 the Act states:
Any employee, contractor, or agent shall be entitled to all relief necessary to make
that employee, contractor, or agent whole, if that employee, contractor, or agent is
discharged, demoted, suspended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of employment because of
lawful acts done by the employee, contractor, agent or associated others in
furtherance of an action under this section or other efforts to stop 1 or more
violations of this subchapter.
31 U.S.C. § 3730(h). “Before the passage of the 2009 amendments, federal courts uniformly
held that the FCA created a cause of action against only a plaintiff’s employer.” Howell v. Town
of Ball, 827 F.3d 515, 530 (5th Cir. 2016). But plaintiff contends that the amendments’ omission
of the phrase “by his or her employer” limiting the list of retaliatory actions expands the scope of
defendants that may be held liable.
This argument has been rejected so many times in recent years that it warrants little
discussion here. “[T]he overwhelming majority of courts, including the Fifth Circuit, have held
that the current version of § 3730(h) does not create a cause of action against supervisors sued in
their individual capacities.” Brach v. Conflict Kinetics Corp., 221 F. Supp. 3d 743, 748 (E.D.
Va. 2016); accord Roberto v. Kent State Univ., No. 5:16CV1305, 2017 WL 1155563, at *2 (N.D.
Ohio Mar. 28, 2017) (collecting twenty-five cases). As the Fifth Circuit noted, “[V]iewing the
changes to § 3730(h) as a whole, it is clear that the reference to an ‘employer’ was deleted to
account for the broadening of the class of FCA plaintiffs to include ‘contractors’ and ‘agents,’
not to provide liability for individual, non-employer defendants.” Howell, 827 F.3d at 529–30.
Indeed, the text of the statute “failed to substitute ‘person’ for ‘employer’” as one would expect
if Congress intended to cover individual defendants, and its legislative history is “silent on the
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issue of the class of potential defendants.” Aryai v. Forfeiture Support Assocs., 25 F. Supp. 3d
376, 387 (S.D.N.Y. 2012). Moreover, the 2009 amendment did not change the mandatory
remedies available, yet “‘remedies such as reinstatement’ are remedies ‘[that] a mere supervisor
could not possibly grant in his individual capacity.’” Id. (quoting Yesudian ex rel. United States
v. Howard Univ., 270 F.3d 969, 972 (D.C. Cir. 2001)).
I am not persuaded by plaintiff’s arguments to the contrary. Plaintiff cites several stray
bits from the FCA’s legislative history, but none of these statements reveals any intent to expand
the class of potential defendants. For example, plaintiff writes that the House Report says the
amendments were intended to “broaden protections for whistleblowers by expanding the False
Claims Act’s anti-retaliation provision to cover . . . people related to or associated with relators.”
H.R. Rep. No. 111-97, at 14 (2009) (emphasis added). But plaintiff wrests this language out of
context. The House Report actually says Congress intended to “broaden protections for
whistleblowers by expanding the False Claims Act’s anti-retaliation provision to cover any
retaliation against . . . people related to or associated with relators,” not retaliation by such
people. Id. (emphasis added). As another court has observed, “The Report contains no similar
statement of intent to expand the scope of liability to include individuals.” Aryai, 25 F. Supp. 3d
at 386. Plaintiff also inaccurately describes the amendments as emphasizing that covered
plaintiffs are entitled to “all relief necessary” to make them whole when this language is
unchanged from the pre-2009 version that courts “uniformly held . . . created a cause of action
against only a plaintiff’s employer.” Howell, 827 F.3d at 530. It is unsurprising that only four
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courts have declined to dismiss such FCA retaliation claims in the past eight years—and all but
one did so without reaching the merits of this issue. 1
As a final Hail Mary, plaintiff drops a footnote arguing that her complaint alleges Mr.
Sullivan is also her employer under the FCA. It does not. See ECF No. 5 at ¶¶ 34, 43, 51, 64
(claiming “Mr. Sullivan was an employer within the meaning of the FLSA” and “Mr. Sullivan
was in a position of actual or apparent authority over Ms. Simmons”). And even if the complaint
had alleged that both Boys & Girls Club and its CEO were Ms. Simmons’ employers under the
FCA, this claim would fail as a matter of law. See U.S. ex rel. Siewick v. Jamieson Sci. & Eng’g,
Inc., 322 F.3d 738, 740 (D.C. Cir. 2003).
For all of these reasons, plaintiff’s FCA retaliation claim against Mr. Sullivan is
dismissed with prejudice.
1
Compare Fitzsimmons v. Cardiology Assocs. of Fredericksburg, Ltd., No. 3:15CV72, 2015 WL
4937461, at *8 (E.D. Va. Aug. 18, 2015) (“[I]n the absence of a specific statutory analysis offered by
either side, this Court finds that summary judgment will provide the most appropriate stage to evaluate
this argument.”), and Weihua Huang v. Rector & Visitors of Univ. of Virginia, 896 F. Supp. 2d 524, 548
(W.D. Va. 2012) (“Because Defendants do not assert in their motion that Dr. Huang’s FCA claims against
them are legally impermissible, I will not dismiss those claims out of hand.”), and Laborde v. RiveraDueno, 719 F. Supp. 2d 198, 205 (D.P.R. 2010) (“In the absence of specific First Circuit guidance
holding that individual liability does not exist in FCA retaliation claims, and in light of the fact that the
persuasive authority on the issue relies upon an outdated version of the statute, the Court DENIES
Defendant’s motion to dismiss . . . .”), with U.S. ex rel. Moore v. Cmty. Health Servs., Inc., No.
3:09CV1127 JBA, 2012 WL 1069474, at *9 (D. Conn. Mar. 29, 2012) (denying the motion to dismiss
individual defendants simply because the FCA’s amendments omit the word “employers,” without
considering the statutory context or its legislative history).
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ORDER
Defendants’ Motion for Judgment on the Pleadings [ECF No. 18] is GRANTED.
DATED this 29th day of September, 2017.
BY THE COURT:
___________________________________
R. Brooke Jackson
United States District Judge
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