Bacon et al v. Dockery et al

Filing 12

ORDER denying 6 --motion to dismiss. Signed by Judge Steven D. Merryday on 10/17/2016. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMBER BACON, et al.,
Plaintiffs,
v.

CASE NO. 8:16-cv-2289-T-23MAP

MAVIS DOCKERY, et al.,
Defendants.
____________________________________/

ORDER
Under the Fair Labor Standards Act (FLSA), Amber Bacon and Dawn Bacon
sue (Doc. 1) Mavis Dockery and Carl Dockery for unpaid overtime wages. The
complaint alleges that the defendants failed to pay the plaintiffs, who worked as
“domestic service employees,” at least “time and one-half for overtime hours.” (Doc.
1 ¶¶ 9, 13) Moving (Doc. 6) to dismiss, the defendants argue that the complaint fails
to state a claim (1) because the complaint lacks allegations proving that Carl Dockery
employed the plaintiffs and (2) because the FLSA exempts from coverage a domesticservice employee who provides a “companionship service.”
1. Employer Allegation
The defendants argue that the complaint contains “no factual allegations
supporting that Defendant Carl Dockery was either plaintiffs’ employer.” (Doc. 6
at 2) However, the complaint alleges, “Plaintiffs worked for Defendants,” and Carl

Dockery is a defendant. (Doc. 1 ¶ 9) The FLSA demands no allegation in a
complaint expounding the parties’ employment relation. See Secretary of Labor v.
Labbe, 319 Fed. Appx. 761, 763 (11th Cir. 2008) (per curiam) (“[T]he requirements to
state a claim of a FLSA violation are quite straightforward. The elements that must
be shown are simply a failure to pay overtime compensation [or] minimum wages to
covered employees.”).
2. Domestic-Service Exemption
“A claim of exemption under the FLSA is an affirmative defense.” Morrison v.
Executive Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314, 1318 (S.D. Fla. 2005)
(Ryskamp, J.); accord Burton v. Hillsborough County, Fla., 181 Fed. Appx. 829, 840
(11th Cir. 2006) (per curiam). A complaint need not negate an affirmative defense.
La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). However, if a
an affirmative defense “is conclusively established on the face of the complaint,”
dismissal is appropriate. Moore’s Federal Practice, Vol. 2, § 12.34[4] (3d ed. 2016);
accord La Grasta, 358 F.3d at 845.
If a domestic-service employee provides a “companionship service,” 29 U.S.C.
§ 213(a)(15) exempts the employee from FLSA coverage. Under 29 C.F.R.
§ 552.6(a), an employee provides a companionship service by providing “fellowship”
(e.g., conversation, reading) or “protection” (e.g., safety monitoring) to an elderly
person. Also, if an employee spends twenty hours or less each week providing “care”

-2-

(e.g., dressing, bathing), under Section 552.6(b), the provision of care is a
companionship service.
According to the complaint, the defendants employed each plaintiff as a
domestic-service employee responsible for Mavis Dockery’s bathing, dressing,
grooming, feeding, toileting, transferring, driving, meal preparation, housework,
medication, and other medical care. (Doc. 1 ¶ 10) The complaint contains no
allegation of the hours the plaintiffs spent on each activity. Thus, the defendants’
argument fails because the domestic-service exemption is not “conclusively
established on the face of the complaint.”* See Moore’s Federal Practice, § 12.34[4].

CONCLUSION
Accordingly, the motion (Doc. 6) to dismiss is DENIED.
ORDERED in Tampa, Florida, on October 17, 2016.

*

In November 2015, the Secretary of Labor began enforcing an amendment to
Section 552.6, the current version of which is discussed above. Before the November 2015
amendment, Section 552.6 defined a “companionship service” as a service that provides “fellowship,
care, and protection.” The definition included “general household work” but only if the housework
comprises less than twenty hours of the employee’s work each week. (Doc. 6 at 2; Doc. 8 at 6–7)
Although the complaint alleges that the plaintiffs performed housework (Doc. 1 ¶ 10), the complaint
contains no explanation about the amount of hours the plaintiffs performed housework each week.
Thus, for the plaintiffs’ employment before November 2015, the complaint’s allegations do not
conclusively establish the domestic-service exemption.

-3-