Gust v. Wireless Vision, LLC et al

Filing 13

MEMORANDUM AND ORDER granting in part and denying in part 6 Motion to Dismiss for Failure to State a Claim. The court shall dismissCount III as to the individual defendants in this case.Otherwise, defendants' motion to dismiss is denied. The courtfurther directs that, unless an objection is filed within 14days, plaintiff file an amended complaint which correctly namesthe defendants in this case. Signed by District Judge Richard D. Rogers on 5/18/15. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRADLEY GUST
Plaintiff,
v.

Case No. 15-2646-RDR

WIRELESS VISION, LLC;
DAVID NAAS, ANTHONY SAWARA,
Defendants.

MEMORANDUM AND ORDER
Plaintiff has filed a complaint with three counts against
defendants

Wireless

Vision,

David

Naas

and

Anthony

Sawara.1

Count I alleges that defendant failed to pay plaintiff overtime
compensation in violation of the Fair Labor Standards Act of
1938

(“FLSA”).

Count

II

alleges

that

plaintiff

retaliation from defendant in violation of FLSA.
alleges

that

plaintiff

was

terminated

from

suffered
Count III

employment

by

defendant in violation of his Kansas common law rights against
wrongful termination.

1

This case is now before the court upon

The memorandum filed in support of the motion to dismiss indicates that
“Anthony Sawara” may not be the correct spelling.
It appears from the
service of summons (Doc. No. 10) that “Anthony Sawara” should be corrected to
read “Anthony Sawa.”
Unless any party objects within 14 days, the court
shall direct that plaintiff file an amended complaint which corrects the
spelling of defendants’ names.
See Wright & Miller, FEDERAL PRACTICE AND
PROCEDURE § 1321 at pp. 391-93 (2004)(“if the proper person actually has been
served with the summons and the complaint, federal courts generally will
allow an amendment under Rule 15 to correct technical defects in the
caption”).

defendants’ motion to dismiss for failure to state a claim,
pursuant to FED.R.CIV.P. 12(b)(6).
I.

MOTION TO DISMISS STANDARDS
In Khalik v. United Air Lines, 671 F.3d 1188, 1190-92 (10th

Cir.

2012),

the

Tenth

Circuit

reviewed

the

standards

for

determining whether a complaint fails to state a claim:
Under Federal Rule of Civil Procedure 8(a)(2), a
pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.”
Recently the Supreme Court clarified this
pleading standard in Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009): to withstand a Rule 12(b)(6)
motion to dismiss, a complaint must contain enough
allegations of fact, taken as true, “to state a claim
to relief that is plausible on its face.”
Twombly,
550 U.S. at 570, 127 S.Ct. 1955.
A plaintiff must
“nudge [his] claims across the line from conceivable
to plausible” in order to survive a motion to dismiss.
Id.
The Court explained two principles underlying the
new standard: (1) when legal conclusions are involved
in the complaint “the tenet that a court must accept
as true all of the allegations contained in a
complaint is inapplicable to [those] conclusions,”
Iqbal, 129 S.Ct. at 1949, and (2) “only a complaint
that states a plausible claim for relief survives a
motion to dismiss,” id. at 1950.
Thus, mere “labels
and conclusions” and “a formulaic recitation of the
elements of a cause of action” will not suffice.
Twombly,
550
U.S.
at
555,
127
S.Ct.
1955.
Accordingly, in examining a complaint under Rule
12(b)(6), we will disregard conclusory statements and
look
only
to
whether
the
remaining,
factual
allegations plausibly suggest the defendant is liable.
For the purposes of this order, it is important to remember that
when assessing a Rule 12(b)(6) motion, the court should not

2

weigh potential evidence that might be admitted at trial.

Scott

v. Topeka Performing Arts Center, Inc., 69 F.Supp.2d 1325, 1327
(D.Kan. 1999).
II.

COUNT I SHALL NOT BE DISMISSED.
A.

The complaint states a claim for violation of FLSA.

Plaintiff alleges in Count I that defendants did not pay
him the overtime wages he was owed pursuant to FLSA.

As part of

his allegations, plaintiff states that “his time records did not
accurately reflect the full number of hours he worked each week
and that he was not being paid all overtime compensation owed.”
Doc. No. 1, ¶ 25.

Defendants assert in their motion to dismiss

that plaintiff was paid overtime for all hours worked in excess
of 40 hours per week.

Defendants support this argument with

payroll records they have attached as an exhibit.
Because

defendants

rely

upon

materials

outside

of

the

pleadings (the payroll records), their argument that plaintiff
was paid his duly owed overtime compensation is improper.

See

Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir.
2013)(“[g]enerally, a court considers only the contents of the
complaint

when

ruling

on

a

12(b)(6)

motion”).

Defendants

maintain that the payroll records should be considered by the
court

because

complaint.

the

records

are

We disagree.

3

referred

to

in

¶

25

of

the

The Tenth Circuit has stated:

“if a plaintiff does not

incorporate by reference or attach a document to its complaint,
but the document is referred to in the complaint and is central
to the plaintiff's claim, a defendant may submit an indisputably
authentic copy to the court to be considered on a motion to
dismiss.”

GFF Corp. v. Associated Wholesale Grocers, Inc., 130

F.3d 1381, 1384 (10th

Cir. 1997).

The decision to consider

records referred to in a motion to dismiss is discretionary with
See Prager v. LaFaver, 180 F.3d 1185, 1189 (10th Cir.

the court.
1999).

Here, paragraph 25 of the complaint makes reference to

“time records.”

The “time records” referred to in paragraph 25

may be different than the payroll records used by defendants as
an exhibit to the motion to dismiss.
the

time

presented

records
as

to

are

not

whether

accurate.

the

records

Plaintiff contends that
So,
used

by

reliable, even if they are the same records.
the

court

determining

chooses
whether

not

to

consider

plaintiff

has

the

stated

a

fact

issue

defendants

is
are

For these reasons,
payroll

records

a

for

claim

in

unpaid

overtime compensation.
Since those records supply the foundation for defendants’
first argument to dismiss Count I and the court declines to open
the record and consider the motion to dismiss as a motion for

4

summary

judgment,

the

court

shall

deny

defendants’

first

argument to dismiss Count I.2
B.
Count I shall not be dismissed as to the individual
defendants.
Defendants

Naas

and

Sawara

argue

that

they

should

be

dismissed as defendants in Count I because the complaint does
not allege that they have hiring and firing authority or that
they set rates of pay.
the

complaint

fails

In light of this, defendants assert that
to

state

a

plausible

claim

that

either

defendant Naas or defendant Sawara is an “employer” for the
purposes of FLSA.

In response, plaintiff notes that “employer”

is defined broadly as “any person acting directly or indirectly
in the interest of an employer in relation to an employee.”
U.S.C.

§

203(d).

Plaintiff

alleges

in

the

complaint

29
that

defendant Sawara was a district manager with supervisory and
operational

control

and

responsibility

2

for

establishing

and

In defendants’ reply brief, they shift their argument to claim that
plaintiff’s allegations are not sufficiently detailed to state a claim for a
FLSA violation.
Defendants assert that plaintiff must at least allege what
work he did that was not accounted for and for which overtime wages were due.
Doc. 12, p. 3. This argument has been accepted by some but not all courts.
See Landers v. Quality Communications, Inc., 771 F.3d 638, 641-45 (9th Cir.
2014)(surveying cases from other circuits and concluding that a plaintiff
must allege that she worked more than 40 hours in a given workweek without
being compensated for the hours worked in excess of forty during that week).
In this district, several cases appear to accept more general descriptions of
FLSA claims.
See Renteria-Camacho v. DIRECTV, Inc., 2015 WL 1399707 *2-3
(D.Kan. 3/26/2015); Pegues v. Carecentrix, Inc., 2013 WL 183996 *1 (D.Kan.
1/17/2013); Spears v. Mid-America Waffles, Inc., 2011 WL 6304126 *2-3 (D.Kan.
12/16/2011); Solis v. La Familia Corp., 2011 WL 2531140 *4 (D.Kan.
6/24/2011); McDonald v. Kellogg Co., 2009 WL 1125830 *1-2 (D.Kan. 4/27/2009).
We decline to decide this issue because it was not raised in defendants’
opening brief. See U.S. v. Watson, 766 F.3d 1219, 1231 n.8 (10th Cir.) cert.
denied, 135 S.Ct. 735 (2014); Ormsby v. Imhoff & Associates, P.C., 2014 WL
4248264 *1 (D.Kan. 8/27/2014).

5

enforcing policies and practices.
alleges

in

manager

where

operational

the

complaint

control

Plaintiff

defendant

Naas

was

the

worked

plaintiff

and

that

Naas

had

day-to-day

the

store

and

over

that

Doc. No. 1, ¶ 15.

was

store

responsible

for

establishing and enforcing the policies and practices at issue
in the complaint.

The court believes these allegations are

sufficient to state a plausible claim that defendants Naas and
Sawara were “employers” as defined in the FLSA and responsible
for the conduct alleged in Count I.

See Boucher v. Shaw, 572

F.3d 1087, 1090-91 (9th Cir. 2009)(high-level managers could be
held

liable

as

employers);

Solis

v.

A-1

Mortg.

Corp.,

934

F.Supp.2d 778, 788-89 (W.D.Pa. 2013)(supervisor without ultimate
authority
College

qualifies
Bd.

of

as

Trs.,

“employer”);
359

Finke

F.Supp.2d

593,

v.

Kirtland

598-99

Comty,

(E.D.Mich.

2005)(high-level college administrator could fit within broad
definition of “employer”).

Defendants’ assertion that Naas and

Sawara did not have power to hire and fire or set rates of pay
is a factual contention which does not provide a proper basis
for deciding a Rule 12(b)(6) motion.

The court has examined

Lumry v. State, 307 P.3d 232 (Kan.App. 2013) and the other case
authority cited by defendants.

The court is not convinced by

these opinions that whether the individual defendants are FLSA
“employers” can be decided on this record with a Rule 12(b)(6)
motion.
6

III. COUNT II SHALL NOT BE DISMISSED.
Plaintiff

alleges

in

the

complaint

that

on

or

about

September 30, 2014, he complained to district manager Sawara
that

defendant

compensation

Naas

owed

to

was

not

him.3

paying
He

plaintiff

further

alleges

terminated without explanation two days later.
also

alleged

generally

that

he

was

all

overtime

that

he

was

Plaintiff has

terminated

because

he

complained about defendant’s failure to properly pay all of his
hours worked.

Doc. No. 1, ¶ 42.

Defendants contend that Count II should be dismissed for
failure to state a claim because plaintiff has not alleged that
he

engaged

in

disagrees.

activity
The

protected

statute

under

protects

FLSA.
any

The

court

employee

from

discrimination because such employee filed any complaint of a
FLSA violation.
Gobain

See 29 U.S.C. § 215(a)(3); Kasten v. Saint-

Performance

Plastics

Corp.,

131

S.Ct.

1325,

1330

(2011)(finding that an oral complaint of a violation of FLSA is
protected conduct under FLSA).

A failure to pay overtime wages

is a potential violation of FLSA.

See Pacheco v. Whiting Farms,

Inc., 365 F.3d 1199, 1207 (10th Cir. 2004)(a request for overtime
wages is a protected activity under FLSA).
under

FLSA

includes

oral

complaints,

3

as

Protected activity
already

noted,

and

This allegation was made in ¶ 28 of the complaint under the heading “Factual
Allegations.”
It was incorporated into Count II’s allegations in ¶ 40.
Therefore, the court rejects defendants’ argument that the allegation in ¶ 28
should be ignored because it was not made under the heading of “Count II.”

7

unofficial assertions of FLSA rights.

Kasten, 131 S.Ct. at 1336

(“oral complaints”); Conner v. Schnuck Markets, Inc., 121 F.3d
1390,

1394

(10th

Cir.

1997)(“unofficial

through complaints at work”).

assertion

of

rights

Upon review of the complaint,

the court concludes that plaintiff has alleged a plausible claim
of retaliation in violation of FLSA.4
IV. COUNT III SHALL NOT BE DISMISSED AS TO DEFENDANT WIRELESS
VISION, BUT SHALL BE DISMISSED AS TO THE INDIVIDUAL DEFENDANTS.
In Count III plaintiff alleges that he “reported to his
district

manager,

the

Integrity

Hotline,

and

a

T-Mobile

corporate manager that his local manager/supervisor, defendant
Naas, violated the Kansas Consumer Protection Act and the Kansas
Wage Payment Act and that defendant Naas instructed co-workers
to violate the Kansas Consumer Protection Act.”
53.

Doc. No. 1, ¶

Plaintiff claims that he was directed to include services

and products in sales to consumers without their knowledge.
at ¶ 28.

Id.

Plaintiff further alleges that his employer knew of

plaintiff’s refusal to engage in these purported violations of
KCPA

and

that

plaintiff

was

discharged

in

retaliation

reporting the violations and refusing to engage in them.

4

for

Id. at

Again, in the reply brief defendants shift their argumentation to assert
that plaintiff’s allegations are too conclusory in that they fail to describe
how he was not paid overtime wages or how defendant Naas qualified as an
“employer” under the law or how plaintiff’s statements qualified an a FLSA
complaint.
Doc. No. 12, p. 5.
The court shall not reach these issues
because either they are raised for the first time in defendants’ reply brief
or they require the court to decide a fact issue upon a Rule 12(b)(6) motion.

8

¶¶ 54-56.

Plaintiff claims that this violates the Kansas common

law protecting whistleblowers from wrongful termination.
Under

Kansas

law,

“the

termination

of

an

employee

in

retaliation for the good-faith reporting of a serious infraction
of rules, regulations, or the law pertaining to public health
and safety and the general welfare by a coworker or an employer
to either company management or law enforcement officials is an
actionable tort.”

Shaw v. Sw. Kan. Groundwater Mgmt. Dist.

Three, 219 P.3d 857, 861-62 (Kan.App. 2009).
In

defendants’

plaintiff’s
reporting

claim

motion

that

violations

of

he

to

was

the

dismiss,
terminated

KCPA.5

they
in

focus

retaliation

Defendants

argue

upon
for
that

plaintiff has not stated a plausible claim because the KCPA is
not a law pertaining to the “general welfare” given that it only
protects

“consumers.”

The

court

notes

that

the

retaliatory

discharge cause of action for whistleblowers in Kansas was first
recognized in Palmer v. Brown, 752 P.2d 685 (Kan. 1988).

In

Palmer, an employee alleged she was discharged for reporting

5

In defendants’ reply brief, defendants make an argument which could be
construed as directed at plaintiff’s claim that he was discharged for
reporting a violation of the Kansas Wage Payment Act. The argument concerns
possible alternative remedies under the Kansas law and FLSA. Doc. No. 12, p.
6. But, the target of the argument is somewhat unclear and as already stated
defendants directed their argumentation in their opening brief solely at the
claim that plaintiff was discharged in retaliation for reporting a violation
of the KCPA.
That is still the claim to which defendants devote the great
bulk of their argumentation in the reply brief.
So, the court will not
address any new argument which defendants might be making in the reply brief
against plaintiff’s claim that he was discharged for reporting a violation of
the Kansas Wage Payment Act.

9

improper Medicaid billing practices.

The court believes that

the KCPA is a law pertaining to “general welfare” as much as
Medicaid.

We see no important distinction between the claim

alleged by plaintiff here and the claim recognized by the Kansas
Supreme Court in Palmer.
Defendants argue that plaintiff does not have standing to
bring

a

claim

under

the

KCPA.

Plaintiff,

bringing an action under the KCPA.
action for wrongful discharge.

however,

is

not

He is bringing a common law

Plaintiff alleges an injury in

fact (his discharge), that defendants caused the injury, and
that his injury may be redressed via this lawsuit.
sufficient to demonstrate constitutional standing.

This is

See Citizen

Center v. Gessler, 770 F.3d 900, 909 (10th Cir. 2014)(discussing
the basic elements of standing).

In addition, plaintiff is

suing to enforce his own rights under FLSA and the Kansas common
law, not the rights of consumers under the KCPA.
standing exists in this case.

So, prudential

See Niemi v. Lasshofer, 770 F.3d

1331, 1344 (10th Cir. 2014)(discussing the general principles of
prudential standing).
Defendants discuss some of the holdings in Lumry v. State,
307

P.3d

232

(Kan.App.

2013)

and

suggest

that

plaintiff’s

complaints to defendants did not put defendants on notice of the
statutory violations plaintiff now claims were the subjects of

10

his complaints.

This is a fact question which the court cannot

determine on this record upon a Rule 12(b)(6) motion.
Defendants
remedy

which

further
should

contend

preclude

that

there

this

court

is

an

from

alternative

applying

the

whistleblower exception to the at-will employment doctrine under
these circumstances.
as

certain

KCPA

Defendant describes one alternative remedy

provisions.

But,

defendant

admits

these

provisions do not provide redress for a retaliatory discharge.
Defendant also mentions FLSA as an alternative remedy, but again
does

not

relate

it

to

a

plaintiff

alleging

a

discharge

retaliation for reporting a violation of the KCPA.
insists

that

plaintiff

must

beneficiary under the KCPA.
in

Palmer

did

not

have

beneficiary of Medicaid.

show

that

he

is

The court disagrees.

to

prove

that

she

was

in

Defendant

an

intended

The plaintiff
an

intended

Nor is this alleged requirement part

of the prima facie elements of a retaliatory discharge claim.6
In plaintiff’s response to the motion to dismiss, plaintiff
raises the question of whether the individual defendants can be
made liable for the tort of retaliatory discharge as alleged in
Count III.

Plaintiff cites Murphy v. City of Topeka-Shawnee

6

According to Lumry, 307 P.3d at 249, “[t]he elements of a prima facie case
of a state retaliatory discharge claim generally include: (1) Plaintiff
exercised a statutory or constitutional right recognized as a basis for a
retaliatory discharge claim; (2) the employer had knowledge of plaintiff's
exercise of that right; (3) the employer terminated the plaintiff's
employment; and (4) a causal connection existed between the protected
activity and the termination.”

11

County Dept. of Labor Services, 630 P.2d 186 (Kan.App. 1981) in
support of the liability of individual defendants, noting that
in Murphy, the court remanded the case to allow a trial against
individual defendants alleged to have terminated the plaintiff’s
employment
claim.

in

retaliation

for

making

a

workers

compensation

More recent case law, including a case from the Kansas

Supreme Court, is contrary to plaintiff’s argument.

In Klaassen

v. University of Kansas School of Medicine, 2015 WL 437747 *2930 (D.Kan. 2/3/2015), the court cited Rebarchek v. Farmers Coop.
Elevator, 35 P.3d 892, 904 (Kan. 2001), as well as case law from
this court and the Kansas Court of Appeals, to hold that only
the

employer

is

discharge claim.

liable

for

a

state

common

law

retaliatory

On this basis, the court shall direct that

Count III be dismissed as to the individual defendants.
V.

CONCLUSION
In conclusion, defendants’ motion to dismiss (Doc. No. 6)

is granted in part and denied in part.
Count

III

as

to

the

individual

The court shall dismiss

defendants

in

Otherwise, defendants’ motion to dismiss is denied.

this

case.

The court

further directs that, unless an objection is filed within 14
days, plaintiff file an amended complaint which correctly names
the defendants in this case.
IT IS SO ORDERED.

12

Dated this 18th day of May, 2015, at Topeka, Kansas.

s/ RICHARD D. ROGERS
Richard D. Rogers
United States District Judge

13