Demeter et al v. Little Gasparilla Island Fire and Rescue, Inc.

Filing 33

ORDER denying 17 Defendant Little Gasparilla Island Fire and Rescue, Inc.'s Motion to Dismiss Plaintiff's Amended Complaint. Defendant is DIRECTED to file an answer to the Amended Complaint on or before March 3, 2017. The parties are DIRECTED to file an amended Case Management Report on or before March 10, 2017. Signed by Judge Sheri Polster Chappell on 2/17/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STEPHEN DEMETER and PAUL
COBLENTZ,
Plaintiffs,
v.

Case No: 2:16-cv-264-FtM-38CM

LITTLE GASPARILLA ISLAND FIRE
AND RESCUE, INC.,
Defendant.
/
OPINION AND ORDER1
This matter comes before the Court on Defendant Little Gasparilla Island Fire and
Rescue, Inc.’s Motion to Dismiss the Amended Complaint (Doc. 17). Plaintiffs Stephen
Demeter and Paul Coblentz oppose Defendant’s motion. (Doc. 18).2 After carefully
considering the parties’ arguments and applicable law, the Court denies Defendant’s
motion.

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Likewise, the Court has no agreements with any of these third parties or their websites.
The Court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the Court.
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This matter has been pending before the Court beyond the 180-day target. This is in
part due to the parties’ settlement efforts initiated after Defendant’s motion. (Doc. 21;
Doc. 22; Doc. 28; Doc. 32).

BACKGROUND
This is a wage and hour dispute under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201 et seq. Defendant, a not-for-profit corporation, provides fire and rescue
services on Little Gasparilla Island. (Doc. 14 at ¶ 5). Since 2014, it employed Demeter
as the fire chief, and Coblentz as a firefighter/paramedic. (Id. at ¶¶ 9, 32). Both Demeter
and Coblentz allege that Defendant misclassified them as exempt from FLSA’s overtime
requirements, and thus they seek unpaid overtime pay for the excess hours they worked.
(Id. at ¶¶ 33-40). In addition, Demeter alleges that Defendant fired him in retaliation for
seeking overtime wages. (Id. at ¶¶ 41-43).
STANDARD OF REVIEW
A pleading must contain a “short and plain statement of the claim showing that a
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This pleading standard “does not
require ‘detailed factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that
offers ‘labels and conclusions’ or a formulaic recitation of the elements of a cause of action
will not do.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “Nor does a
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Id. (citing Twombly, 550 U.S. at 557).
In deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all
factual allegations in the complaint and view them in a light most favorable to the plaintiff.
See Id. It need not accept, however, legal conclusions. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Id. The Supreme Court has been clear that a district court should dismiss a claim where
a party fails to plead facts that make the claim facially plausible. See Twombly, 550 U.S.
at 570. A claim is facially plausible when the court can draw a reasonable inference,
based on the facts pled, that the opposing party is liable for the alleged misconduct. See
Iqbal, 556 U.S. at 678. “Where a complaint pleads facts that are merely consistent with
a defendant's liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Id.
Moreover, in reviewing a motion to dismiss, a court generally may not consider
materials outside of the four corners of a complaint without converting it into a motion for
summary judgment. See Day v. Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005). But a
court may consider a document attached to a motion to dismiss if it is central to the
plaintiff’s claims and its authenticity is not challenged. Id. at 1276. A court may also take
judicial notice of certain facts. Universal Express, Inc. v. U.S. S.E.C., 177 F. App’x 52,
53 (11th Cir. 2006). “Public records are among the permissible facts that a district court
may consider.” Id.
Here, Defendant attaches several exhibits to its motion that it requests the Court
take judicial notice of. (Doc. 17). The exhibits include Defendant’s “Sunbiz” profile from
the Florida Department of State’s website, Defendant’s bylaws, an employment
agreement between Defendant and Demeter, and Defendant’s proposed budgets and
balance sheet. In deciding Defendant’s motion to dismiss, the Court will only consider
the “Sunbiz” profile because the Florida Department of State’s website is a verified
website from a public agency. (Doc. 17-3). The remaining exhibits are evidence that the

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Court cannot consider without converting this matter into a motion for summary judgment.
The documents are better suited for consideration at that later stage.
DISCUSSION
Defendant moves to dismiss the Amended Complaint because Plaintiffs have not
alleged actionable claims for an overtime violation or retaliation. (Doc. 17). The Court
will address each argument in turn.
A. Overtime violations (Count I)
Unless exempt, employees covered by the FLSA must receive overtime pay for
hours worked in excess of forty in a workweek at a rate not less than one and one-half
times their regular rates of pay. 29 U.S.C. § 207(a)(1). To state a claim for failure to pay
overtime wages, a plaintiff must show that (1) the defendant employed him; (2) he or the
defendant engaged in interstate commerce; and (3) the defendant failed to pay him
overtime wages. See Freeman v. Key Largo Volunteer Fire & Rescue Dep’t, Inc., 494 F.
App’x 940, 942 (11th Cir. 2012) (citing Morgan v. Family Dollar Stores, Inc., 551 F.3d
1233, 1277 n.68 (11th Cir. 2008)). The second and third elements are disputed here.
1. Interstate commerce
In order to be subject to overtime requirements, an employee must be “covered”
by the FLSA. Coverage is achieved in one of two ways: (1) the entity is a covered
enterprise; or (2) a particular employee is individually covered. An employee may claim
individual coverage if he regularly and directly participates in the actual movement of
things or persons in interstate commerce. See Josendis v. Wall to Wall Residence
Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011).

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Here, Plaintiffs assert only individual coverage and plead the following facts in
support:


“regularly performed their work in connection with other instrumentalities of
commerce including waterways and highways”;



“used equipment that has been manufactured out of state and moved in
interstate commerce”;



“use[d] telephone lines, and other interstate means of communications,
including the Internet”;



“use[d] waterways and roadways to transport patients”;



used the internet for training;



transported patients to boats, helicopters, and hospitals on roads over which
commerce flows;



“routinely and regularly used and/or handled items moving in the stream of
commerce including cash for T-shirts sold on behalf of Defendant, fuel and gas
for rescue vehicles, office supplies, fire hoses, and fire nozzles.”

(Doc. 14 at 2-3; Doc. 18 at 4). Defendant argues these allegations are not sufficient to
plead individual coverage. It asserts that Plaintiffs do not allege that they are engaged
directly and regularly in interstate commerce, and they only show tangential use of
internet and telephone lines, which is insufficient.

(Doc. 17 at 12-13).

The Court

disagrees.
Plaintiffs have pleaded sufficient facts to tie their work to interstate commerce.
They go beyond a mere recitation of the statutory language. See Ceant v. Aventura
Limousine & Transp. Serv., Inc., 874 F. Supp. 2d 1373, 1377-78 (S.D. Fla. 2012) (noting,
“to properly allege individual or enterprise coverage, the plaintiff need not do much”).
Although Twombly and Iqbal have raised the bar for notice pleading, they do not demand
“detailed factual allegations.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. And a

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simple case of unpaid overtime is not complicated to plead. See U.S. Sec'y of Labor v.
Labbe, 319 F. App’x 761, 763 (11th Cir. 2008) (“Unlike the complex antitrust scheme at
issue in Twombly that required allegations of an agreement suggesting conspiracy, the
requirements to state a claim of a FLSA violation are quite straightforward.”). At this
stage, Plaintiffs need not prove that their ties to interstate commerce were not isolated,
sporadic, or tangential. The Court finds that Plaintiffs’ allegations on individual coverage
are sufficient to survive a motion to dismiss.
2. Overtime pay
Next, Defendant argues that it is exempt from the FLSA’s overtime requirements
because it is a public agency providing fire protection services that employs less than five
employees on a weekly basis. (Doc. 17 at 13-16). These exemptions – which are
affirmative defenses – are found at § 207(k) and § 213(b)(20), respectively.
Section 207(k) provides a partial exemption to the overtime requirements for public
agencies engaged in fire protection activities. It provides that employees engaged in fire
protection may be paid overtime on a “work period” basis – rather than the traditional
workweek. 29 U.S.C. § 207(k). A “work period” may be from seven consecutive days to
twenty-eight consecutive days. For work periods lasting at least seven but less than
twenty-eight days, overtime pay is required when the number of hours worked exceeds
the number of hours that bear the same relationship to 212 as the number of days in the
work period bears to twenty-eight. For example, a firefighter is entitled to overtime under
such plan after working 159 hours during a twenty-one day work period. Likewise,
§ 213(b)(20) provides an exemption to fire protection employees of a public agency that

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employs less than five employees during the workweek. Because both exemptions hinge
on whether Defendant is a public agency, the Court will start there.
The FLSA defines “public agency” to include the government of a State or political
subdivision, any agency of a State, or a political subdivision of a State. 29 U.S.C.
§ 203(x). Bound by the four corners of the Amended Complaint and Defendant’s “Sunbiz”
profile, the Court finds, at this stage, that Defendant does not satisfy the above definition.
It is a not-for-profit corporation with appointed directors.
contracts it to provide fire and rescue services.

Charlotte County, Florida

Defendant neither is created by a

governmental entity nor is it a department or administrative arm of the local government.
Defendant’s reliance on Wilcox v. Terrytown Fifth District Volunteer Fire Dep’t Inc.,
No. A. Civ. 88-5473, 1989 WL 87619 (E.D. La. July 31, 1989), aff'd, 897 F.2d 765 (5th
Cir. 1990) is misplaced here. In Wilcox, plaintiff was a paid employee of defendant-fire
department, which was a non-profit Louisiana corporation incorporated in 1961. He sued
under the FLSA for unpaid overtime wages, arguing that the fire department was a private
corporation. On summary judgment, the court found that the fire department was an
agency of a political subdivision of Louisiana. In so finding, it had the benefit of discovery
when it applied the multitude of factors for deciding whether a private corporation is an
agency of the state.
Even if Defendant satisfied the public agency status at this stage, the Court cannot
decide whether the § 207(k) and § 213(b)(20) exemptions apply. These affirmative
defenses are better suited for summary judgment. The Court is satisfied with Plaintiffs’
allegations as to the number and hours they worked: (1) Demeter earned $45,000 per
year and worked approximately 120 hours per week for all weeks worked during his

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employment; and (2) Coblentz earned $32,000 per year and worked approximately 120
hours per week. (Doc. 14). These allegations are sufficient to survive a motion to dismiss.
Also, because the Court declines to take judicial notice of Defendant’s meeting minutes,
it cannot determine that it employs less than five employees for § 213(b)(20)’s exemption.
In sum, the Court denies Defendant’s motion to dismiss the FLSA overtime
violation claim (Count I).
B. Retaliation (Count II)
The FLSA contains an anti-retaliation provision. It provides that it is unlawful for
an employer “to discharge or in any other manner discriminate against any employee
because such employee has filed any complaint or instituted or caused to be instituted
any proceeding under or related to this chapter[.]” 29 U.S.C. § 215(a)(3).
To establish a prima facie case of retaliation, a plaintiff must allege that (1) he
engaged in activity protected under the act; (2) he suffered an adverse action; and (3) a
causal connection between his protected activity and the adverse employment action.
See Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342-43 (11th Cir. 2000). Here, Defendant
argues there is no causal connection.
A plaintiff can demonstrate causation by showing a close temporal proximity
between the time his employer learned about his protected activity and his discharge.
Here, Plaintiff alleges that a few weeks after he gave Defendant “an un-filed draft of his
FLSA overtime lawsuit with a demand letter,” he was fired. (Doc. 14 at 7-8). Taking this
allegation as true, it shows temporal proximity that is sufficiently close to satisfy the causal
element.

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Defendant relies on Higdon v. Jackson, 393 F.3d 1211 (11th Cir. 2004) to support
the opposite result. It asserts that temporal proximity suffices only where it is “unduly
suggestive,” and no more than one month can pass for it to be so. (Doc. 17 at 19-20).
Higdon is not outcome determinative here. In Higdon, the Eleventh Circuit remarked that
it has “held that a period as much as one month between the protected expression and
the adverse action is not too protracted.” Id. 393 F.3d at 1220 (citations omitted). The
court found that a three-month lapse between the protected activity and adverse action
did not allow a reasonable inference of a casual relation. Id. at 1221. Based on Higdon,
Defendant draws a line at one month. But that case does not impose a strict one-month
ceiling. The Court, therefore, denies Defendant’s motion on Demeter’s retaliation claim.
Finally, the FLSA maintains a two-year statute of limitations for ordinary causes of
action, and a three-year statute of limitations for “willful violations.” 29 U.S.C. § 255(a).
An employer commits a willful violation “if the employer knew or showed reckless
disregard for the matter of whether its conduct was prohibited by the [FLSA].” Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 128-29 (1985).
Here, Defendant argues that Plaintiffs did not plead sufficient facts to make
plausible their allegations that it acted with knowledge or reckless disregard that its
actions violated the FLSA. The Court is again unpersuaded. The allegations of the
Amended Complaint, which must be taken true at this stage, properly assert willfulness.
And, all of the alleged violations occurred within three years of Plaintiffs’ filing of the
Amended Complaint. Again, at this stage, the Court finds that Plaintiffs have plausibly
pled a willful violation.
Accordingly, it is

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ORDERED:
(1) Defendant Little Gasparilla Island Fire and Rescue, Inc.’s Motion to Dismiss
Plaintiff’s Amended Complaint (Doc. 17) is DENIED.
(2) Defendant is DIRECTED to file an answer to the Amended Complaint on or
before March 3, 2017.
(3) The parties are DIRECTED to file an amended Case Management Report on
or before March 10, 2017.
DONE and ORDERED in Fort Myers, Florida this 17th day of February 2017.

Copies: All Parties of Record

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