Rimbey v. The Mucky Duck, Inc.

Filing 27

OPINION AND ORDER denying 19 Motion to Dismiss. Signed by Judge John E. Steele on 6/29/2017. (RKR)

Case 2:17-cv-00103-UA-MRM Document 27 Filed 06/29/17 Page 1 of 9 PageID 96

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TODD RIMBEY,
Plaintiff,
v.

Case No: 2:17-cv-103-FtM-99MRM

THE MUCKY DUCK, INC., a
Florida
corporation
and
ANDREAS BIERI, individually,
Defendants.
____________________________
OPINION AND ORDER
This matter comes before the Court on defendants’ Motion to
Dismiss (Doc. #19) filed on May 9, 2017.

Plaintiff filed a

Response in Opposition (Doc. #25) on June 6, 2017.

For the reasons

set forth below, the motion is denied.
I.
On February 16 2017, plaintiff Todd Rimbey (plaintiff or
Rimbey), a disabled military veteran, filed a two-count Complaint
(Doc.

#1)

and

is

currently

proceeding

on

two-count

Amended

Complaint (Doc. #14) against his former employers, Mucky Duck,
Inc.

and

Andreas

Bieri

(collectively

“defendants”).

Plaintiff

alleges discrimination in violation of the Uniformed Services
Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq.
(USERRA) (Count 1), and failure to pay overtime wages in violation
of the Fair Labor Standards Act (FLSA) (Count 2).

Bieri was

Case 2:17-cv-00103-UA-MRM Document 27 Filed 06/29/17 Page 2 of 9 PageID 97

plaintiff’s direct supervisor, and owns and operates Mucky Duck.
(Id. ¶ 7, 9.)
According

to

the

Amended

Complaint,

defendants

hired

plaintiff in October 2013 to work as a non-exempt, hourly paid
parking lot attendant.

(Doc. #14, ¶ 19.)

Because plaintiff is a

former marine and disabled veteran, he receives disability benefits
from the Department of Veterans Affairs.

(Id. ¶ 21.)

In January

2015, defendants began paying plaintiff a salary of $650 per week.
(Id. ¶¶ 23, 36.)

However, before paying plaintiff, defendants

asked plaintiff the amount he receives in VA benefits.
25.)

(Id. ¶

After informed of the amount, Bieri made the decision to

reduce plaintiff’s pay by the same amount.

(Id. ¶¶ 26, 27.)

Although his title never changed from “parking lot attendant,”
plaintiff’s duties changed over time to include maintenance work,
grounds keeping, plumbing, and electrical work.

(Id. ¶ 19.)

Plaintiff’s job duties did not change when he was made a salaried
employee.

(Id. ¶ 37.)

From October 2013 to January 2015, while an hourly employee,
plaintiff was paid correctly for most of his overtime.
¶ 34.)

(Doc. #14,

However, during this time, defendants deducted one hour

for lunch daily, even though plaintiff did not get a meal break,
resulting in six hours of unpaid overtime per week.

(Id. ¶ 35.)

At other various times, plaintiff worked in excess of forty hours
per week but defendants filed to compensate him at one and one

- 2 -

Case 2:17-cv-00103-UA-MRM Document 27 Filed 06/29/17 Page 3 of 9 PageID 98

half times plaintiff’s regular rate of pay for all hours worked in
excess of forty hours.

(Id. ¶¶ 39-41.)

Once a salaried employee,

defendants stopped paying plaintiff overtime compensation.

(Id.

¶ 38.)
Defendants seek dismissal of both counts for failure to state
a claim on four grounds: (1) claims for “wages or salary” are not
a “benefit of employment” under the USERRA; (2) plaintiff has not
alleged that his military status was a “motivating factor” in
reducing plaintiff’s pay; (3) plaintiff has insufficiently pled
Bieri’s role to qualify him as an “employer” under the FLSA and
the USERRA; and (4) plaintiff’s allegations under the FLSA count
are not specific as to time period.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation
omitted).

To survive dismissal, the factual allegations must be

“plausible” and “must be enough to raise a right to relief above
the speculative level.”

Id. at 555.

See also Edwards v. Prime

Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).

- 3 -

This requires “more

Case 2:17-cv-00103-UA-MRM Document 27 Filed 06/29/17 Page 4 of 9 PageID 99

than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth.”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

“Factual allegations that are merely

defendant’s

facially plausible.”

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (internal citations omitted).

Thus, the

Court engages in a two-step approach: “When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to
relief.”

Iqbal, 556 U.S. at 679.
III.

A. USERRA Discrimination Claim (Count 1)
The

USERRA

protects

members

of

the

military

from

discrimination and retaliation in employment on the basis of their
military

service.

discrimination

is

38

U.S.C.

“defined

§

broadly

- 4 -

4311.
to

Under

include

the

the

USERRA,

denial

of

Case 2:17-cv-00103-UA-MRM Document 27 Filed 06/29/17 Page 5 of 9 PageID 100

‘employment, reemployment, retention in employment, promotion, or
any

benefit

of

employment’

because

of

military

service.”

Wooldridge v. City of Melbourne, 212 F. Supp. 3d 1205, 1209 (M.D.
Fla. 2015).
Defendants argue that plaintiff’s USERRA discrimination claim
fails because wages or salary are not considered a “benefit of
employment”

under

the

Act,

citing

provision last amended in 2006.
C.F.R. § 1002.5(b).) 1

to

a

Code

of

Regulations

(Doc. #19, pp. 3-4, citing 20

Plaintiff responds that this definitional

language was amended in 2010 by the Veterans Benefit Act, to
specifically include wages and salary as a “benefit of employment”
under the USERRA, prohibiting wage discrimination against members
of the armed forces.

See 38 U.S.C. § 4303(2).

The definitional

language now reads: “The term ‘benefit,’ ‘benefit of employment,’
or ‘rights and benefits’ means any advantage, profit, privilege,
gain, status, account, or interest (including wages or salary for
work performed) that accrues by reason of an employment contract
or agreement or an employer policy, plan, or practice . . . )
(emphasis

added). 2

Here,

plaintiff

is

clearly

alleging

that

1

The 2006 definition read: “any advantage, profit, privilege,
gain, status, account, or interest (other than wages or salary for
work performed) that accrues to the employee because of an
employment contract, employment agreement, or employee policy,
plan, or practice. . . .” 20 C.F.R. § 1002.5(b).
2

Prior to the 2010 amendment, courts had noted that the
exception meant that there was no cause of action is an employer
- 5 -

Case 2:17-cv-00103-UA-MRM Document 27 Filed 06/29/17 Page 6 of 9 PageID 101

defendants reduced his pay (an adverse employment action) because
of his military service, falling within the definition of a benefit
of employment. Therefore, dismissal on the basis of the definition
fails.
Defendants argue that Count 1 also fails because plaintiff
has not alleged that his military service was a “motivating factor”
in the decision to reduce plaintiff’s pay.
without merit.

This argument is

Plaintiff alleges that Bieri intentionally took

the action of reducing plaintiff’s pay because of the military
benefits, and intended the adverse consequences; and but for
Bieri’s action plaintiff would have been paid a higher salary.
(Doc. #14, ¶¶ 28-33.)

Plaintiff further alleges that his military

service was a motivating factor in defendants’ adverse employment
action.

(Id. ¶¶ 31, 51.)

Because plaintiff has stated a plausible

claim that plaintiff’s military status was a motivating factor in
the decision to reduce plaintiff’s pay, the motion to dismiss in
this regard is denied. 3

See Woodbridge, 212 F. Supp. 3d at 1209-

10 (noting that to state a prima facie case for discrimination
under the USERRA, a plaintiff need allege only that his military
membership was a motivating factor in the decision to deny a

paid an employee a lower starting salary because of the employee’s
military background. See, e.g., Gagnon v. Sprint Corp., 284 F.3d
839, 852-53 (8th Cir. 2002).
3

Whether plaintiff’s military status was indeed a motivating
factor is not a relevant inquiry at the motion to dismiss stage.
- 6 -

Case 2:17-cv-00103-UA-MRM Document 27 Filed 06/29/17 Page 7 of 9 PageID 102

benefit of employment, which need not be the sole factor in the
decision).
B. Individual Liability under the FLSA and the USERRA
Defendant Bieri, who is the owner of Mucky Duck, moves to
dismiss the Amended Complaint against him, arguing that he cannot
be held individually liable because the Amended Complaint does not
contain any allegations that Bieri had control over employment
opportunities.

(Doc. #19, p. 4.)

(1) FLSA
The FLSA defines an “employer” as “any person acting directly
or indirectly in the interest of an employer in relation to an
employee.”

29 U.S.C. § 203(d).

An officer or owner who is either

“involved in the day-to-day operation [of a corporate entity] or
[has]

some

direct

responsibility

for

the

supervision

of

the

employee” can be held jointly and severally liable as an employer
under the statute.

Alvarez Perez v. Sanford–Orlando Kennel Club,

Inc., 515 F.3d 1150, 1160 (11th Cir. 2008).

“[W]hile control need

not be continuous, it must be both substantial and related to the
company’s FLSA obligations.”

Lamonica v. Safe Hurricane Shutters,

Inc., 711 F.3d 1299, 1314 (11th Cir. 2013).
Here, plaintiff has stated a plausible claim under the FLSA
against Bieri as he alleges that Bieri is the owner and operator
of Mucky Duck who regularly exercised authority to hire, fire, and
discipline employees, and supervised and controlled plaintiff’s

- 7 -

Case 2:17-cv-00103-UA-MRM Document 27 Filed 06/29/17 Page 8 of 9 PageID 103

work schedule and conditions of employment, determining his pay,
which the Court accepts as true and takes in a light most favorable
to plaintiff in deciding a Rule 12(b)(6) motion to dismiss.
#14,

¶¶

7-9.);

Erickson

v.

Pardus,

551

U.S.

89,

94

(Doc.

(2007).

Therefore, defendants’ motion to dismiss the FLSA claim against
Bieri is denied.
(2) USERRA
The USERRA defines “employer” as “any person, institution,
organization, or other entity that pays salary or wages for work
performed

or

that

has

control

over

employment

opportunities

including ... a person, institution, organization, or other entity
to whom the employer has delegated the performance of employment
related
added).

responsibilities.”

38

U.S.C.

§

4303(4)(A)

(emphasis

USERRA expressly creates two private causes of action:

(1) an action brought by an individual against a State (as an
employer); and (2) an action brought against a private employer,
which may be brought in either state or federal court.

See 38

U.S.C. § 4323(a)(2)-(3).
Plaintiff plausibly alleges that Bieri is the owner/operator
of the corporate defendant, and not only had the authority to hire
and fire employees, but was plaintiff’s supervisor, and actually
made the adverse decision to reduce plaintiff’s salary in the
amount of his military benefits (thus controlling plaintiff’s
employment opportunities).

These allegations put Bieri within the

- 8 -

Case 2:17-cv-00103-UA-MRM Document 27 Filed 06/29/17 Page 9 of 9 PageID 104

definition of “employer” under the USERRA.

(Doc. #14, ¶¶ 7, 10,

27, 28.) Therefore, defendants’ motion to dismiss the USERRA claim
against Bieri is denied.
C. Overtime Compensation Time Period
Finally, defendants argue that plaintiff does not specify
which time period or the number of hours he alleges that defendants
failed to pay him overtime compensation.

This argument fails.

Plaintiff plausibly alleges that he was not paid proper overtime
from at least October 2013 through November 2016, which the Court
accepts as true.

(Doc. #14, ¶ 57.)

Plaintiff also alleges that

defendants failed to pay six hours of overtime per week during
this period.

(Id. ¶ 35.)

Additional amounts may be revealed

during discovery, but these allegations are sufficient. The motion
to dismiss on this basis is denied.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendants’ Motion to Dismiss (Doc. #19) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
June, 2017.

Copies:
Counsel of Record

- 9 -

29th

day of