England v. Administrators of the Tulane Educational Fund

Filing 13

ORDER & REASONS: granting in part and denying in part 8 Motion to Dismiss the Amended Complaint; Plaintiff's gap time claims for hours worked in excess of thirty-seven and one-half per week but less than forty is dismissed with prejudice fo r failure to state a claim pursuant to Rule 12(b)(6). Plaintiff's claims for health insurance and retirement contribution plan benefits are dismissed without prejudice as premature because Plaintiff has not exhausted all administrative proced ures as required by ERISA. Defendant's motion to dismiss is denied in all other respects. Accordingly, IT IS HEREBY ORDERED that Defendant's 12(b)(6) Motion to Dismiss(Rec. Doc. 8) is GRANTED IN PART and DENIED IN PART. Signed by Judge Carl Barbier on 11/3/16. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRISTOPHER ENGLAND

CIVIL ACTION

VERSUS

NO: 16-3184

ADMINISTRATORS OF THE TULANE
EDUCATIONAL FUND

SECTION: “J” (2)

ORDER AND REASONS
Before the Court is a 12(b)(6) Motion to Dismiss the Amended
Complaint (Rec. Doc. 8) filed by Defendant, the Administrators of
the Tulane Educational Fund d/b/a Tulane University (“Tulane”), an
Opposition thereto (Rec. Doc. 9) filed by Plaintiff, Christopher
England (“Plaintiff”), and a Reply Memorandum (Rec. Doc. 12) filed
by Tulane. Having considered the motion and legal memoranda, the
record, and the applicable law, the Court finds that the motion
should be GRANTED in part and DENIED in part.
FACTS AND PROCEDURAL BACKGROUND
This

litigation

arises

Tulane from 2012 to 2015.

from

Plaintiff’s

employment

with

Plaintiff alleges that he worked in the

A.B. Freeman School of Business as a “tutor,” earning $19 per hour.
According to Plaintiff, Tulane defined a full-time work week as
thirty-seven

and

one-half

hours

per

seven

days.

Therefore,

Plaintiff asserts that Tulane’s own rules require it to provide
employees overtime pay for any hours exceeding thirty-seven and
one-half in a given work week. Plaintiff alleges that he routinely
1

worked

overtime

hours,

but

“Tulane

creatively

calculated

[Plaintiff’s] pay, denied him benefits paid to other full-time
employees, instructed him not to clock in using the timekeeping
system[,] and finally, terminated him . . . .”

(Rec. Doc. 7, at

2).
Plaintiff filed suit on April 14, 2016, alleging violations
of

the

Fair

Labor

Standards

Act

(“FLSA”)

and

Louisiana

law.

Additionally, Plaintiff raised claims on behalf of a putative class
“comprised of all similarly situated hourly, non-exempt employees
employed by Tulane within the past three years who worked at least
thirty-seven and a half hours per week, with some overtime, and
were not paid correctly through cash wages and/or benefits.” (Rec.
Doc. 1, at 2).

Defendant filed a motion to dismiss pursuant to

Rule 12(b)(6) on June 20, 2016, alleging that Plaintiff’s complaint
failed to state a claim under the FLSA.

On July 19, 2016, this

Court granted that motion, and ordered Plaintiff to file an amended
complaint within 21 days or the Court would dismiss his claims
with prejudice.

(Rec. Doc. 6, at 14).

Plaintiff filed an amended complaint on August 9, 2016. (Rec.
Doc. 7).

In response, Defendant filed the present Motion to

Dismiss Pursuant to Rule 12(b)(6). (Rec. Doc. 8).
PARTIES’ ARGUMENTS
Defendant argues that this Court should dismiss Plaintiff’s
amended complaint for failure to state a claim pursuant to Federal
2

Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”).

Defendant

first contends that Plaintiff’s amended complaint fails to state
a claim for overtime compensation under the FLSA.

Specifically,

Defendant claims that Plaintiff did not adequately plead that he
worked more than forty hours in a specific work week without being
compensated

for

overtime

hours

during

that

particular

week.

Defendant also argues that Plaintiff failed to adequately plead a
collective action under the FLSA.

Defendant points out that the

amended complaint defines the putative class in terms nearly
identical to the vague language of the original complaint, despite
guidance from this Court to provide more specificity.
Defendant

contends

that

Plaintiff’s

collective

action

allegations are procedurally defective because Plaintiff instructs
the Court to notify all “similarly situated” employees without
first

asking

Defendant

the

also

Court
argues

to

conditionally

that

Plaintiff’s

certify
amended

the

class.

complaint

improperly requests compensation pursuant to FLSA for work in
excess of thirty-seven and one-half hours but fewer than forty per
week.
Additionally, Defendant argues that Plaintiff’s state law
claims should be dismissed.

Defendant asserts that the state law

claims are preempted by the FLSA, and that claims for health
insurance and retirement contributions plans are governed by ERISA
and should therefore be dismissed as premature. Finally, Defendant
3

argues that Plaintiff failed to adequately make a claim for unpaid
wages under state law.
Plaintiff filed an opposition to the motion, arguing that his
complaint contains clear and unambiguous allegations of failure to
pay

overtime.

In

particular,

Plaintiff

calls

to

the

Court’s

attention a spreadsheet detailing the overtime hours he alleges to
have worked.
amended

Plaintiff also asserts that the changes made to his

complaint

have

satisfied

the

FLSA

collective

action

requirements for the pleading stage, and that the amended complaint
does not attempt to circumvent FLSA collective action procedure.
In defending his state law claims, Plaintiff asserts that the
FLSA and state law claims are distinct, and so the state law claims
are not preempted.

Plaintiff also argues that he could not have

exhausted ERISA procedural requirements because he was not allowed
to apply for benefits. Finally, Plaintiff argues that he made a
sufficient claim for unpaid wages as required by state law.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, 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). The
complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 346 (2005). The allegations “must be simple,
concise, and direct.” Fed. R. Civ. P. 8(d)(1).
4

“Under

Rule

12(b)(6),

a

claim

may

be

dismissed

when

a

plaintiff fails to allege any set of facts in support of his claim
which would entitle him to relief.” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
enough facts to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is
facially plausible when the plaintiff pleads facts that allow the
court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. A court must accept all
well-pleaded facts as true and must draw all reasonable inferences
in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d
228, 232-33 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196
(5th Cir. 1996). The court is not, however, bound to accept as
true legal conclusions couched as factual allegations.

Iqbal, 556

U.S.at 678.
DISCUSSION
Under

Section

207

of

the

FLSA,

employers

are

generally

required to pay their employees one and one-half times their
regular pay rate for any hours worked in excess of forty per week.
Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567, 572 (E.D.
La. 2008) (citing 29 U.S.C. § 207(a)(1)). Section 216(b) of the
5

FLSA provides employees wrongfully denied overtime with a cause of
action against their employers and authorizes a single employee or
group of employees to bring a collective action against their
employer to recover unpaid overtime on their own behalf and on
behalf of other “similarly situated” employees.
216(b); Johnson, 561 F. Supp. 2d at 572.

29 U.S.C. §

Defendant argues that

Plaintiff’s complaint is deficient under the FLSA for several
reasons. The Court will address each argument in turn.
I.

FLSA Claim for Overtime Compensation
To adequately state a claim for unpaid overtime under the

FLSA, a plaintiff must plead: “(1) that there existed an employeremployee relationship during the unpaid . . . periods claimed; (2)
that the employee engaged in activities within the coverage of the
FLSA; (3) that the employer violated the FLSA's overtime . . .
wage

requirements;

and

(4)

the

amount

of

overtime

.

.

.

compensation due.” Mejia v. Bros. Petroleum, LLC, No. 12-2842,
2015 WL 3619894, at *2 (E.D. La. June 9, 2015) (citing Johnson v.
Heckmann Water Res., Inc., 758 F.3d 627, 630 (5th Cir. 2014)).
granting

Defendant’s

previous

motion

to

dismiss,

this

In

Court

identified two FLSA requirements missing from Plaintiff’s original
complaint: first, the original complaint failed to adequately
allege

that

Defendant

violated

the

FLSA’s

overtime

wage

requirements; and second, the original complaint did not put

6

Defendant

on

notice

for

the

amount

of

overtime

compensation

Plaintiff alleged was due.
In the amended complaint, Plaintiff attempts to cure both
deficiencies by providing a spreadsheet as an exhibit detailing
the amount of unpaid overtime hours he alleges to have worked.
This spreadsheet purports to account for the hours worked during
all pay periods from July 2, 2012 up through and including December
14, 2014.

Although the amended complaint itself does not state

the number of overtime hours Plaintiff alleges to have worked, the
spreadsheet identifies 828 “OT Hours,” which the Court presumes is
the total number of overtime hours claimed by Plaintiff.

Except

for a reference to the spreadsheet in the amended complaint, the
“Failure to Pay Overtime” sections of the original and amended
(Rec. Doc. 7, at 6). 1

complaints are nearly identical.
argues

that

shortcomings

the
as

amended
the

complaint

original

suffers

complaint

from

because

Defendant
the

the

same

amended

complaint simply “mimics” the original complaint, and because the

1
Defendant does not argue that the Court should refrain from reviewing the
spreadsheet attached as an exhibit.
Indeed, the amended complaint makes
reference to the spreadsheet and therefore the Court considers the spreadsheet
as well. See Tellabs, Inc. v. Makor Issues & Rights, LTD., 551 U.S. 308, 322
(2007) (“[C]ourts must consider the complaint in its entirety, as well as other
sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to
dismiss, in particular, documents incorporated into the complaint by reference
. . .”); Maloney Gaming Mgmt., LLC v. St. Tammany Par., 456 Fed. App’x. 336,
340 (5th Cir. 2011) (noting that courts considering a 12(b)(6) motion “may
consider documents outside the complaint when they are: (1) attached to the
motion; (2) referenced in the complaint; and (3) central to the plaintiff’s
claims”).

7

attached spreadsheet is too vague to put Defendant on notice for
the alleged overtime hours worked.
“Allegations of a complaint must be sufficient to ‘give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’”

Kidwell v. Dig. Intelligence Systems, LLC,

No. 13-4064, 2014 WL 4722706, at *4 (N.D. Tex. Sept. 22, 2014)
(quoting Twombly, 550 U.S. at 555).

This notice requirement is

satisfied in the FLSA context when the complaint contains the
“approximate date ranges, as well as the approximate number of
hours

worked,”

compensated.

for

which

Mejia,

the

2015

plaintiff

WL

3619894,

claims

he

at

(holding

*6

was

underthat

plaintiffs adequately pleaded uncompensated overtime by alleging
“that they worked approximately 70-80 hour[s] per week before July
of 2012, and then approximately 50 hours per week thereafter,
without receiving overtime pay”).

Rule 8(a) does not require an

FLSA complaint to be “replete with detailed factual allegations”
so long as it provides the defendant with fair notice.

See Hoffman

v. Cemex, Inc., No. 09-3144, 2009 WL 4825224, at *3 (S.D. Tex.
Dec. 8, 2009).
Defendant

asserts

that

numerous

aspects

of

Plaintiff’s

amended complaint fail to provide the specificity required to put
Defendant on notice.

(Rec. Doc. 8-1, at 4-6).

Defendant

that

points

out

the

spreadsheet

contains

notations that are indecipherable to the viewer.
8

For instance,
graphical

Id. at 4-5.

Due

to

the

vagueness

of

the

spreadsheet,

Defendant

asserts

that

Plaintiff failed to provide Defendant with specific enough data
about the overtime hours he alleges to have worked.
spreadsheet

attached

by

Plaintiff

is

vague

and

While the

difficult

to

decipher, the Court finds that it nevertheless suffices to notify
Defendant of the contours of Plaintiff’s claim.

The spreadsheet

clearly establishes a date range extending from July 2012 through
December 2014.

(Rec. Doc. 7-2, Exhibit D).

The spreadsheet

identifies a total of 828 overtime hours, providing Defendant with
a concrete number of overtime hours Plaintiff alleges to have
worked.

Id.

“Those

are

all

factual

allegations—not

legal

conclusions—and, if proven, they give rise to a plausible claim
for relief.”

Mejia, 2015 WL 3619894, at *6 (internal citations

omitted).
Defendant’s assertion that the amended complaint leaves it
“completely in the dark” with respect to Plaintiff’s overtime claim
is unconvincing.

See (Rec. Doc. 8-1, at 5).

Although the

spreadsheet contains notations not immediately decipherable to the
Court, 2 the exhibit still provides all the notice required at this

2

Examples of such ambiguous notations found within the spreadsheet are: 1. “**”
markings that appear on certain line items without further description other
than that they are in a column entitled “Missing”; 2. Different colorations of
cells in the spreadsheet without guidance as the relevancy of the colors; 3.
Certain cells, such as the cell in the “Reg Hours” column for the pay period
5/20/13 – 6/2/13, have a number that is significantly different than the other
numbers in the column; and 4. Lines run through the spreadsheet in a manner
that appears to indicate a distinction between sections, but the Court was
unable to ascribe any meaning to the lines. (Rec. Doc. 7-2, Exhibit D).

9

stage of litigation.

See Murphy v. Multi-Shot, LLC., No. 14-1464,

2014 WL 4471538, at *2 (S.D. Tex. Sept. 10, 2014) (“An FLSA
plaintiff is not [] required to plead the precise amount of unpaid
wages to which he is allegedly entitled.”)

By identifying the

relevant time period, the spreadsheet provides Defendant with
enough information to search its own records to more accurately
investigate Plaintiff’s period of employment.

The number of

overtime hours worked by Plaintiff should become more discernable
through the discovery process, especially because Defendant can
now access its own employee records using the data provided by
Plaintiff in the spreadsheet.

See Solis v. Time Warner Cable San

Antonio, L.P., No. 10-231, 2010 WL 2756800, at *2 (W.D. Tex. July
13, 2010) (“[I]t cannot be the case that a plaintiff must plead
specific instances of unpaid overtime before being allowed to
proceed to discovery to access the employer’s records.”) (internal
citations omitted).
II.

FLSA Collective Action Pleading
Defendant argues that Plaintiff’s amended complaint fails to

adequately plead an FLSA collective action.

Section 216(b) of the

FLSA authorizes one or more employees to bring a collective action
to recover unpaid overtime on their own behalf and on behalf of
other

“similarly

situated”

employees.

29

U.S.C.

§

216(b).

Although it is necessary for all employees in a collective action
to be “similarly situated,” the FLSA does not define this term.
10

Lang v. DIRECTV, Inc., 735 F. Supp. 2d 421, 434 (E.D. LA 2010).
Additionally, the Fifth Circuit has not specified the level of
detail required to be shown in the pleading stage, as opposed to
the class certification stage.

Id.

Nevertheless, a successful

FLSA complaint must allege facts supporting the conclusion that
all potential plaintiffs were “victims of a common policy or plan
that violated the law.” Wischnewsky v. Coastal Gulf & Int’l, Inc.,
No. 12-2277, 2013 WL 1867119, at *4 (E.D. La. May 2, 2013).
“Plaintiffs

need

only

show

their

positions

are

similar,

not

identical.” Creech v. Holiday CVS, LLC, No. 11-46, 2012 WL 4483384,
at *1 (M.D. La. Sept. 28, 2012).

Moreover, “[a]s applied to a

collective action under the FLSA, a 12(b)(6) motion should not
succeed if the complaint gives the defendant fair notice of the
putative class.” Flores v. Act Event Servs., Inc., 55 F. Supp. 3d
928, 940 (N.D. Tex. 2014) (internal quotations omitted).
When addressing the adequacy of the original complaint, this
Court suggested that a satisfactory collective action pleading
“should provide details about or descriptions of the similarly
situated parties, along with sufficient facts to show that they
were subject to the same pay provisions.”

(Rec. Doc. 6, at 10).

This Court also noted that the original complaint lacked any job
descriptions of the proposed class members.

Id.

Additionally,

this Court found the original complaint to provide Defendant with
inadequate

notice

because

it

included
11

as

class

members

all

employees who worked thirty-seven and one-half hours per week,
even though the FLSA only provides a remedy for hours worked in
excess of forty per week.
Plaintiff’s
deficiencies

in

Id.

amended
two

complaint

ways.

attempts

First,

the

to

amended

cure

these

complaint

has

identified the class as “similarly situated, hourly, non-exempt
‘tutors’” employed by Tulane.
added).

(Rec. Doc. 7, at 4) (emphasis

In so doing, Plaintiff changed only one word from the

original complaint, replacing “employees” with “tutors.”
amended

complaint

members.

also

changes

the

qualifications

of

The
class

While the original complaint included class members who

worked thirty-seven and one-half hours per week, the amended
complaint now only includes class members who have been “denied
proper overtime.”
who

have

Plaintiff

worked
hopes

Id.

By identifying all class members as tutors

overtime
to

have

hours

and

provided

a

are

owed

overtime

satisfactory

wages,

increase

in

particularity.
Although the changes made to the amended complaint are
minimal, they sufficiently provide Defendant with fair notice of
the putative class.

The amended complaint does not, as this Court

suggested would be prudent, provide a job description for the
proposed class, nor does it use Plaintiff’s own job duties to
define the contours of the class.

See Flores, 55 F. Supp. 3d at

940 (“The plaintiffs should have used [their] job duties to assist
12

in defining a more specific putative class.”)

Nevertheless,

Plaintiff’s replacement of the word “employees” with “tutors”
provides a much more specific description of the class.

By

limiting the class to only tutors, the amended complaint narrows
down the potential class members to those who have a unique title
and job description.

Cf. Creech, 2012 WL 4483384, at *3 (finding

a complaint with a putative class consisting of “shift supervisors”
failed to be descriptive enough to justify collective action
because the complaint failed to provide any further description of
the supervisors); Flores, 55 F. Supp. 3d at 940 (same result when
complaint defined the class as “all persons who worked or work for
Defendants and who were/are subject to Defendants’ unlawful pay
practices . . .”).
The Court is mindful that this case has not yet reached the
conditional certification stage.
434-35.

See Lang, 735 F. Supp. 2d at

Therefore, “this determination is made using a fairly

lenient standard.”

Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1214

(5th Cir. 1995) overruled on other grounds by Desert Palace, Inc.
v. Costa, 539 U.S. 90 (2003).

The Plaintiff will have the

opportunity to develop a record on the issue before moving for
certification.

See Lang, 735 F. Supp. 2d at 435.

Likewise, the

Court will then be able to review the appropriateness of collective
action upon such a motion for certification.
4825224,

at

*4.

Today’s

decision
13

prevents

Hoffman, 2009 WL
Defendant

from

performing

an

“end-run

[around]

the

certification

trying certification on the face of the complaint.”

process

by

Lang, 735 F.

Supp. 2d at 436.
III. Collective Action Procedures
Defendant argues that Plaintiff’s amended complaint attempts
to circumvent the FLSA certification process by instructing the
Court to notify similarly situated employees prior to filing a
stand-alone motion for conditional certification.
1, at 15).

(Rec. Doc. 8-

This Court laid out the procedure for FLSA collective

actions in the Order and Reasons granting the motion to dismiss
the original complaint. See (Rec. Doc. 6, at 11-12).

As discussed

therein, an FLSA plaintiff “must file a motion to certify class
before the Court can conditionally certify a class and send notice
to putative class members.”

Id.

Plaintiff’s amended complaint includes the following request:
“[The members of the putative class] should be notified of and
allowed to opt-in pursuant to 29 U.S.C. § 216(b), upon grant of
conditional certification.” (Rec. Doc. 7, at 5) (emphasis added).
This statement clearly demonstrates awareness of the procedural
requirement to obtain conditional class certification prior to
notification.

The amended complaint does not request the Court

to act in circumvention of FLSA class certification protocol.
Therefore,

Plaintiff’s

collective

14

action

allegations

are

not

procedurally defective and Defendant’s motion to dismiss on this
ground is premature.
IV.

Gap Time Claim
Defendant

improperly

argues

invoke

the

that

the

FLSA

by

amended

complaint

claiming

that

attempts

Defendant

to

owes

Plaintiff the overtime rate for all hours worked by Plaintiff in
excess of thirty-seven and one-half per week, even though the FLSA
only provides this recourse for hours worked in excess of forty
per week.

(Rec. Doc. 8, 10).

The FLSA’s overtime provisions

generally do not provide a remedy if the employee has been paid at
least minimum wage and has not worked more than forty hours in a
week.

Green v. Dallas County Schools, No. 04-891P, 2005 WL

1630032, at *3 (N.D. Tex July 6, 2005).

Claims for uncompensated

overtime wages when the employee has worked less than forty hours
in a week are often referred to as “gap time” claims.

Id.

The

Court agrees with Defendant that if Plaintiff’s amended complaint
were to raise a gap time FLSA cause of action, then such claim
would fail as a matter of law.

See Ebbs v. Orleans Par. Sch. Bd.,

No. 04-1198, 2012 WL 3644168, at *5 (E.D. La. Aug. 24, 2012).
Plaintiff asserts that the amended complaint relies upon
Louisiana law, and not the FLSA, to obtain compensation for the
hours worked in excess of thirty-seven and one-half but less than
forty.

The amended complaint, however, does not support that

argument.

The amended complaint relies solely upon the FLSA in
15

its “Failure to Pay Overtime” section.

(Rec. Doc. 7, at 5-6).

In

fact, the amended complaint does not list an overtime compensation
rate as one of the benefits upon which Plaintiff relies in its
section of state law claims.

Because the Court concludes that the

amended complaint relies upon the FLSA for this cause of action,
the claim is an impermissible gap time claim.
V.

State Law Claims and Preemption
Plaintiff’s amended complaint states a claim under Louisiana

law in addition to his FLSA claims.
complaint

alleges

that

Tulane

has

In particular, the amended
an

internal

requirement,

distinct from the FLSA mandate, that all employees who work thirtyseven

and

one-half

hours

in

a

week

are

considered

full-time

employees and are offered certain benefits that include vacation,
paid time off, sick days, and paid holidays.
6).

(Rec. Doc. 7, at 5-

Plaintiff further alleges that Defendant failed to provide

these benefits to Plaintiff despite Plaintiff having worked the
requisite

thirty-seven

and

one-half

weekly

hours.

Defendant

counters that this state law claim is preempted by the FLSA.
Louisiana law requires employers to pay their employees “the
amount then due under the terms of employment” upon the employees’
discharge.

La. Rev. Stat. § 23:631(A)(1)(a). “[T]he statutory

language in La. Rev. Stat. § 23:631(A)(1)(a) does not distinguish
between regularly earned wages and overtime compensation. . . .”
Kidder v. Statewide Transport, Inc., 2013-594, p. 8 (La. App. 3
16

Cir. 12/18/13); 129 So. 3d 875, 880; Holmes v. Notary Shoppe, Inc.,
2014-22, p. 8 (La. App. 5 Cir. 5/28/14); 139 So. 3d 1183, 1189.
Therefore, the statute is broad enough to capture all compensation
due

under

the

compensation.

terms

of

employment,

and

not

just

overtime

See Odom v. Respiratory Care, Inc., 1998-263 (La

App. 1 Cir. 2/19/99); 754 So. 2d. 252, 256 (noting that there is
a “distinction between an employer timely paying earned wages for
all hours worked, and an employer refusing to pay [alleged overtime
wages]” and holding that “[t]he payment of overtime wages is
clearly governed by the FLSA”).
In the context of unpaid overtime claims for employees engaged
in interstate commerce, the FLSA preempts state law causes of
action.

See Kidder v. Statewide Transport, Inc., 2013-594, p. 6

(La. App. 3 Cir. 12/18/13); 129 So. 3d

875, 880; Little v. Mizell,

No. 15-268, 2016 WL 3430489, at *4 (E.D. La. June 22, 2016).

But

here, Plaintiff is invoking the Louisiana law for benefits he
alleges to be entitled to by virtue of meeting Tulane’s internal
requirement of providing the above-described benefits to employees
who work thirty-seven and one-half hours weekly.

In this case,

Plaintiff makes a state law claim to compensate for what he alleges
is due under the terms of the contract, not for compensation he
alleges to be due for overtime wages. Accordingly, Plaintiff’s
state law claim for vacation, paid time off, sick days, and paid
holidays are not preempted by the FLSA.
17

VI.

ERISA
As

described

Plaintiff

is

above,

owed

the

certain

amended

complaint

benefits

because

alleges
he

that

satisfied

Defendant’s internal requirement to qualify for said benefits.
Among

the

benefits

Plaintiff

alleges

to

be

insurance and retirement contribution plans.”
6).

owed

are

“health

(Rec. Doc. 7, at

Alleging that Defendant violated state law, the amended

complaint states that Plaintiff is entitled to be paid the value
of the benefits “and/or damages from the denial of said benefits.”
Id. at 7.

Defendant argues that health insurance and retirement

contribution plans are properly characterized as plans subject to
the Employment Retirement Income Security Act of 1974 (“ERISA”),
and that Plaintiff’s claims are premature because Plaintiff has
not exhausted the administrative procedures required by ERISA.
Plaintiff, however, contends that it is “unfathomable” that he
would have been able to follow ERISA’s administrative procedures
because he “was never afforded the opportunity to even apply for
benefits.”

(Rec. Doc. 9, at 4).

The amended complaint does not explicitly state the names of
the benefit plans to which it refers.

In its motion to dismiss,

Defendant asserts that the health insurance plan is properly
characterized as an “employee welfare benefit system” as defined
by

Section

3(1)

of

ERISA.

Defendant

also

asserts

that

the

retirement contribution plan referred to by Plaintiff qualifies as
18

an “employee pension benefit plan” under Section 3(2) of ERISA.
Plaintiff does not dispute in his opposition to the motion to
dismiss that these plans qualify as “employee welfare benefit
system” and “employee pension benefit plan,” respectively.

The

Court is therefore satisfied that these plans are ERISA-governed.
Defendant points out that ERISA-governed plans are required to
establish

and

maintain

reasonable

administrative

addressing the denial of plan benefits.

remedies

See 29 C.F.R. § 2560.503-

1(b)(6)(i) (requiring such plans to “set[] forth or incorporate[]
by specific reference–(A) Provisions concerning the filing of
benefit claims and the initial disposition of benefit claims, and
(B) a grievance and arbitration procedure to which adverse benefit
determinations are subject”).
Because

the

health

insurance

and

retirement

contribution

plans referred to in Plaintiff’s amended complaint are plans that
fall under ERISA, Plaintiff’s complaint with respect to these
claims

is

premature.

“[A]

plaintiff

generally

must

exhaust

administrative remedies afforded by an ERISA plan before suing to
obtain benefits wrongfully denied.”

Chailland v. Brown & Root,

Inc. 45 F.3d 947, 950 (5th Cir. 1995); see also Bourgeois v.
Pension Plan for Employees of Santa Fe Int’l Corp., 215 F.3d 475,
480 (5th Cir. 2000) (“[P]laintiffs seeking ERISA plan benefits are
bound by the plan’s administrative procedures and must use them
before filing suit even if they have no notice of what those
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procedures are.”)

Accordingly, Plaintiff is required to exhaust

the administrative procedures of the plans.
The Court finds the Fifth Circuit’s ruling in McGowin v.
ManPower International, Inc. instructive.
2004).

In

McGowin,

the

plaintiff

363 F.3d 556 (5th Cir.

claimed

that

her

employer

fraudulently deprived her of certain ERISA benefits, which she
asserted

“amount[ed]

to

loss

of

retirement

benefits,

profit

sharing benefits, yearly bonuses and medical health care . . .”
that other employees receive.

Id. at 559.

As in the present case,

there was no evidence that the plaintiff in McGowin made any
attempt

to

claim

benefits

from

the

administrative claim for benefits.

employer

or

Id. at 559-60.

initiated

an

Instead, the

plaintiff stated that she “was denied ‘meaningful access’ to the
administrative process” and so she could not have exhausted the
required administrative procedures.

Id. at 559.

The court noted

that although the plaintiff’s complaint alleged a state law claim
of fraud, the plaintiff nevertheless was seeking “determination
for benefits under an ERISA-governed plan.”

Id.

For this reason,

the court held that the claim was preempted by ERISA.

Id.

Here, Plaintiff’s amended complaint does not specifically
seek a remedy through ERISA.

But because the benefits are ERISA-

governed, Plaintiff must exhaust all the administrative remedies
required by ERISA.

Plaintiff cannot rely on remedies available

through the Louisiana law if a remedy is also available through
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ERISA because ERISA will preempt the Louisiana law claim.

See

Gulf Coast Plastic Surgery, Inc. v. Standard Ins. Co., 562 F. Supp.
2d 760, 765 (E.D. La. 2008).

State law claims that seek the same

relief afforded under ERISA § 502(a) are completely preempted,
“regardless

of

how

artfully

pleaded

as

a

state

action.”

Id.

(internal citations omitted).
VII. Proper Demand for State Law Claim
In order to recover under the La. Rev. Stat. 23:631(A)(1)(a),
the employee must make a demand upon the employer for the payment.
La. Rev. Stat. § 23:632; Jackson v. Housing Auth. For Par. of St.
James, 2005-665, p. 8 (La. App. 5 Cir. 3/14/2006); 926 So. 2d 606,
611.

Defendant argues that the amended complaint fails to allege

that Plaintiff made a legal demand for wage payments.

However,

the amended complaint states that Plaintiff “made demand for
payment of these wages upon his separation.”

(Rec. Doc. 7, at 6).

Although a demand for payment “must be fairly precise and certain,”
see Lambert v. Usry & Weeks, 1994-216, p.3 (La. App. 5 Cir.
9/14/94); 643 So. 2d 1280, 1281, the allegation is sufficient to
overcome a Rule 12(b)6 motion to dismiss.
CONCLUSION
Plaintiff’s gap time claims for hours worked in excess of
thirty-seven and one-half per week but less than forty is dismissed
with prejudice for failure to state a claim pursuant to Rule
12(b)(6).

Plaintiff’s claims for health insurance and retirement
21

contribution plan benefits are dismissed without prejudice as
premature because Plaintiff has not exhausted all administrative
procedures as required by ERISA.

Defendant’s motion to dismiss is

denied in all other respects.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s 12(b)(6) Motion to Dismiss
(Rec. Doc. 8) is GRANTED IN PART and DENIED IN PART.
New Orleans, Louisiana this 3rd day of November, 2016.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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