BAGOUE v. Developmental Pathways, Inc. et al

Filing 60

ORDER denying 39 Defendants' Motion to Dismiss Plaintiffis First Amended Complaint by Judge Philip A. Brimmer on 09/25/2017. (sphil, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-01804-PAB-MJW
FLAVIE BONDEH BAGOUE, and those similarly situated,
Plaintiff,
v.
DEVELOPMENTAL PATHWAYS, INC. and
CONTINUUM OF COLORADO, INC.,
Defendants.

ORDER

This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff’s First
Amended Complaint Pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) [Docket
No. 39]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND1
Defendants operate group homes focused on providing care for developmentally
disabled adults. Docket No. 33 at 2, ¶ 6-7. For approximately ten years, plaintiff was
employed by defendants as a life skills specialist. Id. at 1-2, ¶¶ 5-6. By the end of her
employment, plaintiff’s work consisted almost entirely of 56-hour shifts at the Nevada
Group Home, one of several facilities operated by defendants. Id. at 2, ¶¶ 6-9.
During plaintiff’s ten-year employment, plaintiff worked under defendants’
“continuous shift policy.” Id. at 3, ¶ 14. Under the continuous shift policy, defendants’

1

The facts below are taken from plaintiff’s amended complaint, Docket No. 33,
and are presumed to be true for purposes of this motion to dismiss.

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employees worked approximately 56 consecutive hours before being relieved by
another employee. Id. at 3, ¶ 15. Plaintiff states that she was only paid for 40 of the 56
hours she worked for each shift. Id. at 5, ¶ 30.
Plaintiff alleges that defendants failed to adequately compensate plaintiff for
certain categories of time including: time spent communicating with other workers at the
beginning and end of her shifts, id. at 5, ¶¶ 34-35; sleep time, which was regularly
interrupted such that plaintiff did not usually get five hours of continuous and
uninterrupted sleep, id. at 9, ¶ 59; and extra time worked as a result of the change to
daylight savings time. Id., ¶¶ 60-61. Plaintiff also alleges that the sleeping facilities
provided by defendants were inadequate because they were not private quarters,
separated from the residents of the group home. Id. at 10, ¶ 66-67. Plaintiff claims that
the staff room set aside for sleeping did not have amenities for recreation, offered little
privacy, was illuminated by hallway lights, and that the residents of the group home
would enter her sleeping quarters without permission. Id. at 10-12, ¶¶ 66-74.
Plaintiff states that she never entered into a formal agreement with defendants to
deduct 16 hours of sleep time from her paychecks. Id. at 12, ¶ 76. Plaintiff alleges
that, “on several occasions [she] objected to Defendants’ failure to compensate her for
the nighttime hours during her Continuous Shifts.” Id. at 13, ¶ 81.
As a result of the foregoing conduct, plaintiff seeks relief under the Colorado
Minimum Wage Act, Colo. Rev. Stat. §§ 8-4-101, et seq., and Wage Order, 7 Colo.
Code Regs. § 1103-1 (first claim for relief); under the Fair Labor Standards Act, 29

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U.S.C. § 201, et seq. (second claim for relief); and equitable relief under Colorado law
(third claim for relief). Docket No. 33 at 18-21, ¶¶ 114-135.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege
enough factual matter that, taken as true, makes the plaintiff’s “claim to relief . . .
plausible on its face.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W ]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged – but it has not shown – that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration
marks omitted). Thus, even though modern rules of pleading are somewhat forgiving,
“a complaint still must contain either direct or inferential allegations respecting all the
material elements necessary to sustain a recovery under some viable legal theory.”
Bryson, 534 F.3d at 1286 (alteration marks omitted).
III. ANALYSIS
Defendants raise three arguments in the motion to dismiss: first, plaintiff has
failed to allege sufficient facts regarding uncompensated time; second, plaintiff has
failed to allege that the sleeping facilities provided by defendants were inadequate; and,
third, plaintiff has impliedly agreed to defendants’ sleep time arrangement by working
under the continuous shift policy for ten years.2 Docket No. 39 at 12-22.
2

Defendants’ motion to dismiss states that it incorporates by reference 21 pages
from their first motion to dismiss, which was mooted by the filing of the amended
complaint. See Docket No. 39 (stating that the motion to dismiss incorporated pages 13, 6-10, 10-12, and 12-18 of the original motion to dismiss). Defendants also seek to
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A. Uncompensated Sleep Time
Defendants claim that the continuous shift policy used at the Nevada Group
Home is permitted by the FLSA. Docket No. 39 at 11. Specifically, defendants rely on
29 C.F.R. § 785.22, which states:
(a) General. Where an employee is required to be on duty for 24 hours or
more, the employer and the employee may agree to exclude bona fide
meal periods and a bona fide regularly scheduled sleeping period of not
more than 8 hours from hours worked, provided adequate sleeping
facilities are furnished by the employer and the employee can usually
enjoy an uninterrupted night’s sleep. If sleeping period is of more than 8
hours, only 8 hours will be credited. Where no expressed or implied
agreement to the contrary is present, the 8 hours of sleeping time and
lunch periods constitute hours worked.
(b) Interruptions of sleep. If the sleeping period is interrupted by a call to
duty, the interruption must be counted as hours worked. If the period is
interrupted to such an extent that the employee cannot get a reasonable
night’s sleep, the entire period must be counted. For enforcement
purposes, the Divisions have adopted the rule that if the employee cannot
get at least 5 hours’ sleep during the scheduled period the entire time is
working time.
29 C.F.R. § 785.22 (citations omitted). The regulation requires that, in order for an
employer to exclude sleep time, the employee must “usually enjoy an uninterrupted
night’s sleep,” the employer must provide “adequate sleeping facilities,” and the parties
must have an “expressed or implied agreement” to exclude the sleep time. Id.

incorporate exhibits attached to the first motion to dismiss, including pictures of the
Nevada group home, a letter issued by the Department of Labor and Employment, and
plaintiff’s time sheets. Id.; Docket No. 26-1. On November 10, 2016, defendants filed a
motion seeking leave to file a 34-page motion to dismiss the amended complaint.
Docket No. 37. The Court denied defendants’ request and stated that defendants had
leave to file a motion to dismiss not to exceed 28 pages. Docket No. 38. Defendants’
attempt to incorporate 21 pages of additional argument into their 22-page motion to
dismiss is improper. Accordingly, the Court will not consider the arguments or exhibits
incorporated by reference. This includes defendants’ argument that they are exempt
from Colorado Minimum Wage Orders. See Docket No. 26 at 10-12.
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Defendants argue that plaintiff has failed to plead a violation of any of the three
requirements of § 785.22. Docket No. 39 at 12-20.
1. Whether Plaintiff Usually Enjoyed an Uninterrupted Night’s Sleep
Defendants contend that plaintiff’s FLSA claim should be dismissed because the
amended complaint “is devoid of any factual allegations and composed of vague
conclusions and unsubstantiated, unspecif ied suppositions which do not identify how
[plaintiff] regularly received less than 5-hours of sleep time.” Docket No. 39 at 12.
Specifically, defendants claim that plaintiff’s failure to plead actual examples of
disruptions in excess of three hours is fatal to plaintiff’s claim. Id. at 13.
The Court finds that plaintiff’s pleadings are sufficient to state a claim under the
FLSA. Plaintiff describes her nighttime duties and the manner in which they interrupted
her sleep. See Docket No. 33 at 7-10, ¶¶ 47-65 (stating that plaintiff dealt with
interruptions from “bad dream[s],” “medical needs,” recording residents’ bowel
movements, and waiting up for residents). Plaintiff states that “[t]he result of all of the
interruptions during the night is that when Ms. Bagoue worked a Continuous Shift she
rarely had five continuous and uninterrupted hours during which she could sleep.” Id. at
10, ¶ 63.
Defendants argue that, even if all of the above examples of sleep interruptions
were combined, plaintiff would still have been able to get a total of five hours of sleep
during any given sleep window. Docket No. 39 at 13. There are, however, two
problems with defendants’ argument. First, plaintiff is not required to plead every
instance in which her sleep was interrupted, so long as she pleads facts plausibly

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supporting her claim. Iqbal, 556 U.S. at 678. She has done so. Second, def endants
mistake the requirements of the relevant regulation. In order for an employer to
institute a policy of excepting sleep time, employees must “usually enjoy an
uninterrupted night’s sleep.” 29 C.F.R. § 785.22(a). W hen an employer institutes an
otherwise valid policy to exclude sleep time, an employer must offer compensation for
all sleep time if, on a particular occasion, the employee receives less than five hours of
total sleep.3 29 C.F.R. § 785.22(b). Plaintiff’s FLSA claim falls under the first category:
as a result of the continuous shift policy, plaintiff “could not usually enjoy an
uninterrupted night’s sleep.” Docket No. 33 at 10, ¶ 65. Accordingly, plaintiff is not
required to allege that on a particular night she received less than five hours of total
sleep; instead, plaintiff is required to plead that she could not usually enjoy an
uninterrupted night’s sleep. By pleading specific examples of how her sleep was
regularly interrupted and by claiming that she “rarely had five continuous and
uninterrupted hours during which she could sleep,” Docket No. 33 at 10, ¶ 63, plaintiff
has adequately pled a claim for relief under the FLSA. 4

3

This distinction is highlighted in Department of Labor bulletins describing
compliance with § 785.22(a). See U.S. Department of Labor, Field Assistance Bulletin
No. 2016-1, Exclusion of Sleep Time from Hours Worked by Domestic Service
Employees at 13 (April 25, 2016) (distinguishing between “Requirements for excluding
an employee’s sleep time from hours worked” and “Limitations on exclusion on a
particular night”), https://www.dol.gov/whd/FieldBulletins/fab2016_1.pdf.
4

Defendants attached plaintiff’s time sheets to their original motion to dismiss in
support of the argument that plaintiff experienced only a limited number of interruptions
to her sleep schedule. See Docket No. 26-1 at 37-63. Defendants claim that plaintiff
has “implicitly referenced” the employment records. Docket No. 39 at 15. The time
sheets referred to by defendants are not attached to the current m otion to dismiss. As
noted above, the Court refuses to consider those materials incorporated into the motion
to dismiss by reference. However, even if the Court were to consider the time sheets,
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2. Whether Defendants Provided Adequate Sleeping Facilities
Defendants argue that plaintiff’s claim with respect to sleeping facilities is
foreclosed by her characterization of the sleeping quarters as “like a hospital or dorm
room.” Docket No. 39 at 16-18. The amended complaint asserts that the sleeping
facilities provided by defendants were inadequate because they were not private
quarters, separated from the residents of the group home. Docket No. 33 at 10,
¶ 66-67. Plaintiff claims that the staff room set aside for sleeping did not have
amenities for recreation, offered little privacy, was illuminated by hallway lights, and that
the residents of the group home would enter her sleeping quarters without permission.
Id. at 10-12, ¶¶ 66-74.
Defendants offer no authority for concluding that the sleeping facilities were
reasonable as a matter of law. See Docket No. 39 at 16-18. None of the cases cited
by defendants found dismissal of a claim appropriate at the motion to dismiss stage
and only one case squarely considered the adequacy of sleeping facilities. See
VanDyke v. Bluefield Gas Co., 210 F.2d 620, 622 (4th Cir. 1954) (refusing to disturb a
trial court’s findings that sleeping quarters were adequate); Rokey v. Day &
Zimmermann, 157 F.2d 734, 735-36 (8th Cir. 1946) (discussing facts found by a trial
court with respect to sleeping quarters but making no determination as to their
adequacy); Eustice v. Fed. Cartridge Corp., 66 F. Supp. 55, 57 (D. Minn. 1946) (relying

the amended complaint does not refer to plaintiff’s time sheets, implicitly or explicitly,
and plaintiff has not conceded the authenticity of the documents. See GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (discussing
the requirements for incorporation by reference). Accordingly, the Court would not have
considered the documents attached to defendants’ first motion to dismiss.
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on stipulated facts and omitting any discussion of the adequacy of “dormitory type”
sleeping quarters). In addition, while the cases cited by defendants discuss dormitory
type quarters, none discuss the importance of privacy in a group home setting,
particularly a facility for developmentally disabled adults.
Defendants have presented no basis for dismissing the portion of plaintiff’s claim
related to the adequacy of defendants’ sleeping facilities. See Burnison v. Mem’l Hosp.,
Inc., 820 F. Supp. 549, 558 (D. Kan. 1993) (“T he ultimate resolution of the sleep period
issue turns upon whether the sleeping facilities are adequate and whether the plaintiffs
usually receive an uninterrupted night’s sleep. These are distinctly factual questions.”).
3. Whether the Parties had an Express or Implied Agreement
Defendants argue that plaintiff’s employment under the continuous shift policy for
ten years constitutes an implicit agreement to be bound by defendants’ policy of
excluding sleep time. Docket No. 39 at 18-20. The Tenth Circuit recognizes that “an
agreement to exempt sleep time from paid work under the FLSA can be implied.”
Braziel v. Tobosa Developmental Servs., 166 F.3d 1061, 1063 (10th Cir. 1999). So
long as an employee understands and acquiesces to a policy exempting sleep time at
the time he or she is hired, the employer has complied with § 785.22(a). See id.
(finding no dispute over the existence of an implied agreement where “it is clear from
the record and appellants’ pleadings that they became unhappy with the policy
sometime after beginning their employment . . . [but] it is equally clear that appellants
understood and acquiesced to the policy when they were hired.”); see also Hendricks v.

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Oklahoma Prod. Ctr. Grp. Homes, Inc., 2005 WL 3486008 at *2 (10th Cir. Dec. 21,
2005) (same).
The Court finds that dismissal of this portion of plaintiff’s claim is premature.
Both Braziel and Hendricks were decided at the summary judgment stage after the
record had been fully developed. See Braziel, 166 F.3d at 1062; Hendricks, 2005 WL
3486008 at *1. The amended complaint states that, when plaintiff began working under
the continuous shift policy, “her understanding was that she would be paid for all hours
worked” and that “on several occasions [plaintiff] objected to Defendants’ failure to
compensate her for the nighttime hours during her Continuous Shifts.” Docket No. 33
at 13, ¶ 81. These allegations are sufficient to raise a genuine issue of material fact as
to an implied agreement between the parties.
B. Plaintiff’s Other FLSA Claims
Defendants also seek to dismiss plaintiff’s FLSA claims related to daylight
savings time and short briefings at the beginning and end of plaintiff’s shifts. Docket
No. 39 at 15, 20-22.
As to the first issue, the amended complaint states that plaintiff was not paid for
an extra hour of work as a result of having to “start awakening the residents an hour
earlier on Sunday morning (effectively at 5am instead of 6am).” Docket No. 33 at 9,
¶ 61. Defendants argue that dismissal is appropriate because “the FLSA does not
require compensation for one hour due to the time change at either seasonal time as it
affects sleep not call to duty.” Docket No. 39 at 16. Defendants cite no authority for
their claim that plaintiff was not owed compensation for additional time worked as a

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result of the time change. See id. The Court finds that plaintiff has adequately alleged
that she was not paid for an extra hour of work, Docket No. 33 at 9, ¶ 62, and
defendants have not provided a basis to dismiss this portion of plaintiff’s FLSA claim.
As to the second issue, the amended complaint states that “Defendants require
Continuous Shift Workers . . . to arrive before their shifts so the worker can receive a
summary of what has happened during the previous shift.” Docket No. 33 at 5, ¶ 34.
Plaintiff alleges that defendants “do not pay for the time Continuous Shift Workers
spend communicating with other workers at the beginning and end of their shifts, but
Defendants require Continuous Shift Workers to engage in these types of
communications between shifts.” Id., ¶ 36. Defendants argue that these briefings were
de minimis or preliminary as a matter of law and, thus, plaintiff was not owed
compensation for time spent on these briefings. Docket No. 39 at 20-22.
In order to determine whether compensable time is de minimis, the court must
consider: “(1) the practical administrative difficulty of recording the additional time; (2)
the size of the claim in the aggregate; and (3) whether ‘the claimants performed the
work on a regular basis.’” Reich v. Monfort, Inc., 144 F.3d 1329, 1333-34 (10th Cir.
1998) (quoting Reich v. New York City Transit Authority, 45 F.3d 646, 652 (2d Cir.
1995)). Defendants provide no grounds, based on the allegations of the amended
complaint, to deem the three Reich factors satisfied as a matter of law.5

5

Defendants also refer to the “Portal-to-Portal Act,” Docket No. 39 at 21, but the
motion to dismiss makes no reference to the contents of the statute or how it would be
relevant to plaintiff’s claim. Accordingly, the Court does not consider this argument.
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The Court finds that dismissal of plaintiff’s claims under the FLSA related to
daylight savings time and the short briefings is inappropriate at this time.
C. Plaintiff’s Claim for Equitable Relief
Defendants’ motion states “Plaintiff is seeking the alleged wages under federal
law. Therefore, the alternative remedial claim under Colorado Common Law Equity in
Count 3 is preempted by the FLSA.” Docket No. 39 at 10. Defendants cite no authority
in the motion to dismiss supporting their argument. Accordingly the Court does not
consider defendants’ argument. See D.C.COLO.LCivR 7.1(d) (requiring that “a motion
involving a contested issue of law shall . . . be supported by a recitation of legal
authority in the motion”).
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendants’ Motion to Dismiss Plaintiff’s First Amended
Complaint Pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) [Docket No. 39] is
denied.

DATED September 25, 2017.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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