Roman v. Tyco Simplex Grinnell
ORDER: Defendant Tyco Simplex Grinnell's Motion to Dismiss the Fourth Amended Complaint (Doc. # 29 ) is GRANTED IN PART AND DENIED IN PART. Counts I, II, and III are DISMISSED WITH PREJUDICE. The Motion is DENIED as to Count IV to the extent the FLSA claim is based on travel time besides ordinary commuting time. Tyco Simplex Grinnell's answer to Count IV is due August 23, 2017. Signed by Judge Virginia M. Hernandez Covington on 8/8/2017. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 8:16-cv-3449-T-33AEP
TYCO SIMPLEX GRINNELL,
This matter comes before the Court upon Defendant Tyco
Plaintiff Gilbert Roman responded on July 31, 2017. (Doc. #
30). For the reasons that follow, the Motion is granted in
part and denied in part.
Roman initiated this action on December 19, 2016. (Doc.
# 1). In the original Complaint, Roman stated in full:
While working for Tyco Simplex Grinnell, I was
harassed, eggs, mucus, Grease or tar thrown on
company van. Placed in unfair and unsafe work
Conditions. Causing me high blood pressure. All
because an oral Contract was breached.
I seek 7 million dollars in compensation
punitive damages For the wrong done to me.
(Id. at 1). The Court dismissed the Complaint on January 3,
2017, and granted Roman leave to file an amended complaint
that clearly stated his claims and established the Court’s
jurisdiction. (Doc. # 7).
On January 17, 2017, Roman filed an Amended Complaint
and affidavit. (Doc. ## 10-11). Based on the allegations of
the Amended Complaint and affidavit, it appeared Roman was
attempting to assert only a breach of oral contract claim
against his former employer, Tyco, for failing to assign Roman
to the higher-paying assignments he was promised when he
accepted the job as a fire alarm inspector. (Doc. # 10).
Additionally, Roman alleged that supervisors at Tyco placed
him in unsafe working conditions and retaliated against him.
(Id. at 2). The Court dismissed the Amended Complaint on
January 18, 2017, advising Roman to “organize all his factual
allegations clearly and succinctly in numbered paragraphs
that state a claim for breach of contract” and to “clearly
specify the basis for this Court’s diversity jurisdiction.”
(Doc. # 12 at 7-8).
Roman then filed his Second Amended Complaint and an
affidavit with exhibits on February 2, 2017, alleging breach
of contract, as well as violations of the Fair Labor Standards
Act (FLSA), 29 U.S.C. § 201, et seq., and the Occupational
Safety and Health Act (OSHA), 29 U.S.C. § 651, et seq. (Doc.
# 13 at 3; Doc. # 14). Roman claimed $7,000,000 in damages
because his side-business failed due to Tyco’s refusal to pay
him at the promised higher hourly rate. Additionally, Roman
complained he was forced to work in confined and near-freezing
spaces and was not paid for his travel time at the beginning
and end of each day. (Id. at 2-3).
The Court dismissed the Second Amended Complaint on
February 8, 2017, stating that, while the Second Amended
Complaint was an improvement, “Roman has not corrected many
of the problems pointed out in the Court’s previous Orders.”
(Doc. # 15 at 4). The Order explained that Roman needed to
separate his FLSA claim into its own count, and provide
further details about the basis of that claim. (Id. at 5).
The Court noted the FLSA allegations were unclear about the
travel time for which Roman sought compensation, and the Court
emphasized that clarity on the issue was important because
compensable under the FLSA. (Id.). The Court also explained
that OSHA does not create a private right of action, so Roman
could not bring a claim under that statute. (Id. at 6).
Roman then filed his Third Amended Complaint. (Doc. #
16). The Third Amended Complaint included four different
counts: two counts for breach of oral contract, one count for
“Unsafe-Unfair work conditions,” which was brought under OSHA
and the Trafficking Victims Protection Reauthorization Act
(TVPRA), 18 U.S.C. §§ 1581 et seq., and one count brought
under the FLSA. Tyco filed its Motion to Dismiss the Third
Amended Complaint on May 9, 2017, (Doc. # 23), and Roman
responded, (Doc. # 26). The Court dismissed the Third Amended
Complaint with leave to amend on June 5, 2017. (Doc. # 27).
In that Order, the Court advised Roman that he must allege
facts sufficient to show that enforceable contracts existed
between him and Tyco and that he was forced to work in
advised Roman to clarify the basis for his FLSA claim for
uncompensated travel time because the single-sentence claim
was vague about, among other things, the type of travel upon
which it was based. (Id. at 16).
Roman filed his Fourth Amended Complaint on June 28,
2017. (Doc. # 28). The Fourth Amended Complaint asserts claims
for breach of oral contract, breach of implied contract, and
violations of the TVPRA and FLSA. (Id.). Tyco moved to dismiss
the Fourth Amended Complaint on July 13, 2017 (Doc. # 29),
and Roman responded, (Doc. # 30). The Motion is now ripe for
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However,
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope
complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
liberally and holds them to a less stringent standard than
those drafted by attorneys. Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003). But, “a pro se litigant is still
required to conform to procedural rules, and a district judge
is not required to rewrite a deficient pleading.” McFarlin v.
Douglas Cty., 587 F. App’x 593, 595 (11th Cir. 2014).
Although Tyco acknowledges the Fourth Amended Complaint
complies with Federal Rules of Civil Procedure 8 and 10, Tyco
argues the Fourth Amended Complaint still fails to rectify
the issues pointed out in the Court’s previous Orders and
does not state claims for any cause of action. (Doc. # 29 at
5). The Court will address each count in turn.
Breach of Oral Contract
established an oral contract with Tyco through an October of
2013 conversation with Inspection Manager Arkie Devenuto.
During the conversation, Devenuto offered Roman a lower pay
rate than Roman had requested — $21 per hour instead of $25
per hour — and “stated that  Roman would get plenty of
[prevailing] wage work  if he accepted the lower rate of
pay.” (Doc. # 28 at 2). “Roman agreed to accept the lower
rate of pay, with the expectation that this would be offset
available, as [such work] pays significantly higher rates of
thirty dollars  to fifty dollars  per hour.” (Id.).
But, between October of 2013 and May of 2014, “very
little opportunity for [prevailing wage work] was provided.”
(Id.). “[A]dequate opportunity for” such work was not given
until May of 2014, after Roman had a meeting “with the
alleges he suffered damages because of Tyco’s failure to
“provide consistent opportunity for [prevailing wage work]
for approximately eight months of Roman’s employment.” (Id.
Despite the Court’s previous Orders, Roman fails to
plead sufficient details to determine that a contract was
entered. He says he was promised prevailing wage work, “when
[it] was available.” (Id. at 2). But it does not appear the
parties discussed how frequently prevailing wage work would
be available or whether Roman would be assigned to every
assignments “when  available” fails to plausibly plead an
oral contract was entered. See Lapine v. Seinfeld, 918 N.Y.S.
2d 313, 318 (N.Y. Sup. Ct. 2011)(“[A] contract will not be
found to have been formed if it is ‘not reasonably certain in
its material terms.’” (citation omitted)); see also Caniglia
v. Chicago Tribune-New York News Syndicate, Inc., 612 N.Y.S.
2d 146, 147 (N.Y. App. Div. 1994)(“The IAS court properly
dismissed, without leave to replead, the plaintiffs’ first
cause of action, purporting to set forth a cause of action
for breach of contract, as too indefinite, and therefore,
nonconclusory language, as required, the essential terms of
specific provisions of the contract upon which liability is
predicated . . .”).
“clarify how much prevailing wage work [he] was actually
promised . . . or the timeframe for when or how often [he]
would receive prevailing wage assignments.” (Doc. # 27 at
11). But Roman has failed to do so. Therefore, Roman has
failed to sufficiently plead facts regarding the terms of the
alleged oral contract.
sufficient to create a binding oral contract with Tyco, Tyco
argues that Roman has failed to plausibly allege a breach of
that contract. (Doc. # 29 at 7). Roman alleges that during an
opportunity for” prevailing wage work. (Doc. # 28 at 3). But,
although he “underst[ood] that ample opportunity for [such
work] would be provided to him,” he does not allege that
prevailing wage work assignments were available during this
time. (Id.). Because the supposed oral contract required Tyco
to give Roman prevailing wage assignments only when they were
assign them to Roman. Roman has not alleged this. Therefore,
the breach of oral contract claim is dismissed with prejudice.
Breach of Implied Contract
In Count II, Roman asserts for the first time that his
multiple deficiency quoting work was an implied contract.
Roman alleges he and Tyco entered an implied contract in 2014,
“when Tyco first implemented a multiple deficiency quoting
program, which stated it would pay inspection workers oneand-one-half percent (1.5%) to three percent (3%) commission
rates.” (Doc. # 28 at 3). When Roman left Tyco, “he had
reached the ranking of sixth in the company, nationwide, for
expectation that he would receive commission payments for his
successes.” (Id. at 3-4). Roman vaguely asserts “there was
program was established and made known to company employees.”
(Id. at 4).
There are many problems with Count II. First, Roman does
not specify whether the alleged contract was implied-in-fact
or implied-in-law. This is important because the two types of
implied contracts are distinct. Under New York law, a contract
implied-in-fact is a binding contract “formed by conduct,
assent.” Dixon v. NBCUniversal Media, LLC, 947 F. Supp. 2d
390, 400 (S.D.N.Y. 2013). “The elements of an implied-in-fact
contract are the same as the elements of an express contract.”
Lapine, 918 N.Y.S.2d at 318 (citation and internal quotation
In contrast, a contract implied-in-law — also called a
quasi-contract — “only applies in the absence of an express
agreement, and is not really a contract at all, but rather a
legal obligation imposed in order to prevent a party’s unjust
enrichment.” Clark-Fitzpatrick, Inc. v. Long Island R.R. Co.,
obligation is one imposed by law where there has been no
agreement or expression of assent, by word or act, on the
part of either party involved. The law creates it, regardless
equitable result.” Bradkin v. Leverton, 257 N.E. 2d 643, 645
precluded “whenever there is a valid and enforceable contract
governing a particular subject matter, whether that contract
is written, oral, or implied-in-fact.” Beth Israel Med. Ctr.
v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d
573, 587 (2d Cir. 2006).
The case law cited by Roman in the Fourth Amended
Complaint further confuses the question of what claim Count
Complaint quotes New York University v. Continental Insurance
Company, 662 N.E. 2d 763, 769 (N.Y. 1995), regarding the
implied covenant of good faith and fair dealing. (Doc. # 28
at 3-4; Doc. # 29 at 8). But the covenant of good faith and
fair dealing is not the same as an implied contract. Rather,
the implied covenant of good faith and fair dealing is a
covenant that is a part of every contract “pursuant to which
neither party to a contract shall do anything which has the
effect of destroying or injuring the right of the other party
to receive the fruits of the contract.” Dorset Indus., Inc.
v. Unified Grocers, Inc., 893 F. Supp. 2d 395, 405 (E.D.N.Y.
2012)(citation and internal quotation marks omitted).
But, because the implied covenant of good faith and fair
dealing exists only for true contracts, the Court treats this
claim as one for breach of a contract implied-in-fact, rather
than a claim for breach of contract implied-in-law. See Payday
Advance Plus, Inc. v. Findwhat.com, Inc., 478 F. Supp. 2d
496, 503 (S.D.N.Y. 2007)(“[A] breach of the implied covenant
is not a separate cause of action, but is instead one way of
establishing a breach of contract.”). And Roman’s statement
that “consideration [was] exchanged between the parties,”
though vague, supports that Roman is proceeding under a
contract implied-in-fact theory. (Doc. # 28 at 4).
Again, to plausibly plead the existence of a contract
implied-in-fact, Roman must allege “an offer, acceptance,
consideration, mutual assent and intent to be bound” — the
same elements required for an express contract. (Doc. # 27 at
9)(quoting Register.com, Inc. v. Verio, Inc., 356 F.3d 393,
427 (2d Cir. 2004)). But the assent to form the contract may
be demonstrated by the parties’ conduct. Dixon, 947 F. Supp.
2d at 400.
Tyco argues that this claim should be dismissed with
prejudice because Roman “has not [pled] sufficient facts
entered into either a contract or implied contract, or what
eligibility and performance requirements that the parties
were obliged to follow to fulfil their obligations under the
alleged contract.” (Doc. # 29 at 8).
“there was consideration exchanged between [the] parties when
employees,” he does not elaborate on what this consideration
was. (Doc. # 28 at 4). Roman acknowledges he reached a high
ranking in multiple deficiency quoting at Tyco — but he does
quoting as a result of Tyco’s apparently gratuitous promise
to pay commissions. Indeed, Roman does not elaborate on the
meaning of “multiple deficiency quoting” or explain whether
participation in the multiple deficiency quoting program.
Even if Tyco’s institution of the program was an offer
exchanged, Roman has not pled a breach of that contract
implied-in-fact. Roman does not explicitly allege that Tyco
failed to pay him commissions for his multiple deficiency
liberally in light of Roman’s pro se status, fail to state a
claim for breach of contract implied-in-fact. Count II is
dismissed with prejudice.
TVPRA Forced Labor Claim
In Count III, Roman alleges Tyco violated 18 U.S.C. §
1589(a)(2) makes it unlawful for any person to “knowingly
provide or obtain the labor or services of a person . .
. by means of serious harm or threats of serious harm to that
person or another person.” The term “serious harm” is defined
reputational harm, that is sufficiently serious,
under all the surrounding circumstances, to compel
a reasonable person of the same background and in
the same circumstances to perform or to continue
performing labor or services in order to avoid
incurring that harm.
18 U.S.C. § 1589(c)(2).
assigned a job at a residence in Kingston, New York” that
“required him to enter into a crawl space area underneath the
building, a confined space.” (Doc. # 28 at 5). Roman “was
expected to enter into the crawl space alone.” (Id.). When
Roman “expressed concern regarding completion of the job,” he
“was told by the inspection manager that he was refusing work
[and] [Roman] [was] harassed.” (Id.). Sometime after “having
alleges he “had to leave work at Tyco for safety reasons.”
In analyzing whether labor was forced, courts “must
permissible warnings of adverse but legitimate consequences.”
Headley v. Church of Scientology Int’l, 687 F.3d 1173, 1180
omitted). Roman does not clearly allege that his supervisor
threatened termination. Rather, he alleges his supervisor
stated Roman “was refusing work” and “harass[ed]” him in some
unspecified way. Even if his supervisor directly threatened
to fire Roman if Roman refused the job assignment, Roman has
not explained why this went beyond a legitimate warning of a
consequence of refusing to do his job.
Nor has Roman explained why being terminated from his
job would be sufficiently serious to constitute “serious
termination is serious harm. (Doc. # 28 at 5). He does not
allege that he would face deportation if he lost his job or
that he was otherwise in an especially precarious financial
(E.D.N.Y. 2014)(“Plaintiff sufficiently alleges that she was
coerced into working by threats of deportation if her work
was not satisfactory. Accordingly, she has properly stated a
claim under 18 U.S.C. § 1589(a).”). While Roman argues in his
response that he has sufficiently alleged a violation of §
1589(a)(4), (Doc. # 30 at 3), the Fourth Amended Complaint
only alleges Tyco violated § 1589(a)(2).
Furthermore, Roman was free to leave his job if he
acknowledges he eventually chose “to leave work at Tyco for
safety reasons.” (Doc. # 28 at 5). Admittedly, the TVPRA “does
not require that plaintiffs be kept under literal lock and
key.” Franco, 51 F. Supp. 3d at 247. But the allegation that
Roman was free to leave work at Tyco, combined with Roman’s
other vague allegations about a single work assignment, fail
to state a claim for forced labor. See Headley, 687 F.3d at
1180-81 (affirming summary judgment on TVPRA claim and noting
defendants” but “chose instead to stay with the defendants
and to continue providing their ministerial services”).
performed went beyond the satisfaction of his legitimate job
permissible warning of a possible termination. Accordingly,
Count III for violation of the TVPRA is dismissed with
FLSA Overtime Claim
“To state a claim under the FLSA for unpaid wages, an
employee must allege (1) an employment relationship; (2) that
the employer or employee engaged in interstate commerce; and
(3) that the employer failed to pay overtime compensation
and/or minimum wages.” Patterson v. Dow Enterprises-Naples
8772843, at *2 (M.D. Fla. Dec. 15, 2015).
However, the Portal-to-Portal Act, 29 U.S.C. § 254(a),
exempts certain activities from compensation under the FLSA.
The following activities are exempted:
(1) walking, riding, or traveling to and from the
actual place of performance of the principal
activity or activities which such employee is
employed to perform, and
(2) activities which
are preliminary to
which occur either prior to the time on any
commences, or subsequent to the time on any
particular workday at which he ceases, such
principal activity or activities. For purposes of
this subsection, the use of an employer’s vehicle
for travel by an employee and activities performed
by an employee which are incidental to the use of
such vehicle for commuting shall not be considered
part of the employee’s principal activities if the
use of such vehicle for travel is within the normal
commuting area for the employer’s business or
establishment and the use of the employer’s vehicle
is subject to an agreement on the part of the
employer and the employee or representative of such
29 U.S.C. § 254(a).
Thus, “for instance, ‘[n]ormal travel from home to work
[whether at a fixed location or at different job sites] is
not worktime’ because it is ‘an incident of employment,’ and
is therefore not compensable.” Burton v. Hillsborough Cty.,
Fla., 181 F. App’x 829, 834 (11th Cir. 2006)(quoting 29 C.F.R.
§ 785.35). Still, “§ 254(a) does not eliminate employer
liability for all work-related travel - that is, not all workrelated travel is non-compensable time.” Id. Indeed, “[t]ime
spent by an employee in travel as part of his principal
activity, such as travel from job site to job site during the
workday, must be counted as hours worked.” 29 C.F.R. § 785.38.
Count IV alleges Tyco violated the FLSA “by not providing
appropriate compensation for overtime work completed during
travel time to and from a job site.” (Doc. # 28 at 5). Roman
describes this overtime work as “approximately five  hours
per week traveling to and from job sites, for which he was
not compensated.” (Id. at 6).
Tyco argues that the FLSA claim is “unclear whether
[Roman] is claiming compensation for commute time before the
first job and after the last job or whether he is claiming 
compensation for travel time between the first job and the
last job.” (Doc. # 29 at 11). The Court disagrees. The Court
reads the Fourth Amended Complaint’s phrasing “travel time to
and from a job site” as an assertion that Roman was entitled
to compensation for all of his travel time to and from job
sites, whether it was his morning and evening commute or
travel from one job site to the next during the workday. The
Court’s reading aligns with Roman’s response, in which he
insists he is entitled to both travel time between job sites
during the workday and commute time to and from work. (Doc.
# 30 at 3). Therefore, in ruling on Tyco’s Motion, the Court
will treat the FLSA claim as one for all travel time.
Tyco also insists the FLSA claim should be dismissed at
least “to the extent that [Roman] is claiming pay for commute
time.” (Doc. # 29). The Court agrees that this claim should
be dismissed in part. To the extent Roman bases the FLSA claim
on normal travel time between home and work that was not
coupled with any other activity, this claim is dismissed with
prejudice. See 29 C.F.R. § 785.35 (“Normal travel from home
to work is not worktime.”); see also Preston v. Settle Down
Enters., Inc., 90 F. Supp. 2d 1267, 1280 (N.D. Ga. 2000)(“The
compensable has been applied to situations where travel to
the work site is not coupled with any other activity.”);
Chapman v. Grable Plumbing Co., No. 8:10-cv-1202-T-30AEP,
2011 WL 3269628, at *6 (M.D. Fla. Aug. 1, 2011)(granting
summary judgment as to commute time because “there is nothing
in the record that suggests that Chapman’s travel time from
his home to his first service call and from his last service
call to his home was anything more than commuting time, which
is not compensable”).
But, the Fourth Amended Complaint alleges Roman was not
compensated for any travel time to and from job sites. And
Tyco has not presented any argument as to travel time besides
ordinary commuting. Therefore, the FLSA claim survives as to
all other travel time, including travel between job sites and
any non-ordinary commute time — i.e., time during Roman’s
commute in which he may have made stops or performed other
tasks on behalf of Tyco. See 29 C.F.R. § 785.36 (noting
“[t]here may be instances when travel from home to work is
overtime,” such as when an employee is required to return to
work after normal working hours because of an emergency); 29
C.F.R. § 785.41 (“Any work which an employee is required to
perform while traveling must, of course, be counted as hours
Roman’s claims for breach of oral contract, breach of
prejudice. To the extent Count IV for violation of the FLSA
is based on ordinary commute time, that claim is dismissed
with prejudice. But, to the extent Roman bases his claim on
any other uncompensated travel time, Count IV survives.
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
Defendant Tyco Simplex Grinnell’s Motion to Dismiss the
Fourth Amended Complaint (Doc. # 29) is GRANTED IN PART
AND DENIED IN PART.
Counts I, II, and III are DISMISSED WITH PREJUDICE.
The Motion is DENIED as to Count IV to the extent the
FLSA claim is based on travel time besides ordinary
Tyco Simplex Grinnell’s answer to Count IV is due August
DONE and ORDERED in Chambers in Tampa, Florida, this
8th day of August, 2017.
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