Tillman v. Louisiana Children's Medical Center et al
ORDER AND REASONS granting in part 19 Motion to Dismiss. Defendant Louisiana Children's Medical Center is DISMISSED WITHOUT PREJUDICE. Plaintiff's collective action allegations and whistleblower claim are likewise DISMISSED WITHOUT PREJUDICE. Plaintiff is granted leave to amend her Complaint within 20 days of this Order to the extent that she can remedy the deficiencies identified herein. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LOUISIANA CHILDREN’S MEDICAL
CENTER ET AL.
ORDER AND REASONS
Before the Court is Defendant’s Motion to Dismiss (Doc. 19). For the
following reasons, the Motion is GRANTED IN PART.
Plaintiff Myreal Tillman, a PBX operator at New Orleans East Hospital
(“NOEH”), alleges that she and others similarly situated are owed unpaid
minimum wages and overtime from their employers, Defendants Louisiana
Children’s Medical Center (“LCMC”) and Touro Infirmary. Plaintiff alleges
that a half-hour meal break was deducted from every day that she worked,
despite the fact that she was not allowed a meal break. She alleges that she
was retaliated against after complaining about this practice and that her hours
were ultimately reduced to zero. Plaintiff brings claims for unpaid wages and
retaliatory discharge under the Fair Labor Standards Act (“FLSA”), as well as
state law whistleblower and final wage payment claims.
Defendants have filed the instant Motion to Dismiss arguing that
Plaintiff has not alleged facts upon which relief can be granted. This Court
will consider each of Defendants’ arguments in turn.
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim for relief that is plausible on its face.”1 A claim is
“plausible on its face” when the pleaded facts allow the court to “draw
reasonable inference that the defendant is liable for the misconduct alleged.”2
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.”3 The court need not, however,
accept as true legal conclusions couched as factual allegations.4 To be legally
sufficient, a complaint must establish more than a “sheer possibility” that the
plaintiff’s claims are true.5 If it is apparent from the face of the complaint that
v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007)).
3 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
4 Iqbal, 556 U.S. at 678.
an insurmountable bar to relief exists and the plaintiff is not entitled to relief,
the court must dismiss the claim.6
The court’s reviewis limited to the
complaint and any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint.8
LAW AND ANALYSIS
In its Motion to Dismiss, Defendants move for the dismissal of LCMC as
a defendant, all collective action allegations, and all state law claims. This
Court will consider each argument in turn.
LCMC as Defendant
First, Defendants argue that Plaintiff’s Complaint does not establish
that LCMC was her employer. “In order to establish a claim for retaliation or
failure to compensate under the FLSA, there must first be an employeremployee relationship.”9 Plaintiff’s Complaint alleges that LCMC and Touro
are her joint employers and that both are liable for the FLSA violations.
Defendants seek dismissal of LCMC from this matter, alleging that Plaintiff’s
Complaint fails to establish that LCMC was her employer.
The parties agree that in order to prove that a party was an employer
under FLSA, the plaintiff must allege facts showing that the defendant had
the requisite control over aspects of her employment. An “‘[e]mployer’ includes
any person acting directly or indirectly in the interest of an employer in
relation to an employee.”10 “To determine whether an individual or entity is
Lormand, 565 F.3d at 255–57.
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
9 Mendoza v. Essential Quality Const., Inc., 691 F. Supp. 2d 680, 684 (E.D. La. 2010).
10 29 U.S.C. § 203(d).
an employer, the court considers whether the alleged employer: ‘(1) possessed
the power to hire and fire the employees, (2) supervised and controlled
employee work schedules or conditions of employment, (3) determined the rate
and method of payment, and (4) maintained employment records.’”11
Defendants allege that Plaintiff’s allegations amount merely to a “status
based inference” in which she alleges that LCMC and Touro jointly operated
NOEH. Plaintiff rebuts that her allegations are sufficient to show that LCMC
and Touro jointly exercised control over her through the implementation of
policies and procedures.
This Court holds that Plaintiff’s allegations are insufficient. Plaintiff’s
Complaint merely alleges that LCMC managed and operated NOEH but it does
not allege that LCMC had any actual control over Plaintiff. The Complaint
does not allege that LCMC could hire, fire, or supervise Plaintiff. Accordingly,
Plaintiff has not alleged sufficient facts to establish that LCMC was an
employer for purposes of FLSA, and she therefore cannot succeed on her FLSA
claim against it.
Collective Action Allegations
Next, Defendants argue that the Complaint fails to adequately describe
or identify the class of “similarly situated” persons and that Plaintiff’s
collective action allegations are insufficient to state a claim. Plaintiff rebuts
that Defendants’ argument is an improper attempt to dispute class
certification before Plaintiff has moved for such.
Gray v. Powers, 673 F.3d 352, 355 (5th Cir. 2012).
“There is no specific guidance from the Fifth Circuit Court of Appeals on
this issue, and opinions from district courts both in this circuit and others are
inconsistent, arriving at different conclusions as to a) whether certain job
descriptions and factual allegations meet the plausibility standard as
established in Iqbal and Twombly; and b) whether a motion to dismiss or
collective action certification is the proper stage in the proceedings to address
However, this Court finds the opinion in England v.
Administrators of the Tulane Education Fund instructive. In England, a court
in this District stated that: “To prevail against a motion to dismiss, a plaintiff’s
complaint ‘must allege facts sufficient to demonstrate that [she] and potential
plaintiffs were victims of a common policy or plan that violated the law.
Plaintiffs need only show their positions are similar, not identical.’”13 The
court held that the complaint’s allegations did not give the defendants fair
notice of the putative class because it did not 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.”14
Here too, Plaintiff has failed to give Defendants any details or
descriptions of the similarly situated parties she purports to bring her claim
on behalf. Plaintiff’s Complaint merely states that she brings suit on behalf of
any person who has worked at a hospital owned by Defendants since 2013 and
Creech v. Holiday CVS, LLC, No. 11-46, 2012 WL 4483384, at *2 (M.D. La. Sept. 28,
England v. Adm’r s of the Tulane Educ. Fund, No. 16-3184, 2016 WL 3902595, at
*4 (E.D. La. July 19, 2016) (quoting Wischnewsky v. Coastal Gulf & Intern., Inc., No. 12-2277,
2013 WL 1867199, at *4 (E.D. La. May 2, 2013); Creech v. Holiday CVS, LLC, No. 11-46-BAJDLD, 2012 WL 4483384, at *1 (M.D. La. Sept. 28, 2012)).
whose hourly wage was reduced by a 30-minute meal break, even though they
were not fully relieved of their duties during that time. This broadly defined
class fails to give Defendants fair notice.15 Plaintiff’s Complaint does not
specifically identify any potential class members, describe the positions they
held or work they performed, or identify how they are similarly situated to
Plaintiff. Accordingly, the allegations of the Complaint fail to give Defendants
fair notice of the putative class, and those allegations are dismissed.
State Law Claims
1. Louisiana Wage Payment Statute
Plaintiff next brings a claim under the Louisiana Wage Payment Statute
(“LWPS”), which states that an employee must be paid all of the wages owed
to him within 15 days of his discharge.16 Defendants make three arguments
for the dismissal of this claim.
First, Defendants argue that this statute is inapplicable here as Plaintiff
has not been discharged from her position. Plaintiff’s Complaint alleges that
she was effectively discharged when her hours were reduced to zero.
The terms ‘termination’ or ‘discharge’ in relation to employment
matters have been defined by Louisiana jurisprudence. The
employment relationship may be terminated without an express
notice by either party. Any acts or words that reasonably lead an
employee to believe that his services are no longer needed
See Flores v. Act Event Servs., Inc., 55 F. Supp. 3d 928, 940 (N.D. Tex. 2014).
La. Rev. Stat. § 23:631.
17 Blanson v. Town of Richwood, 81 So. 3d 230, 234 (La. App. 2 Cir. 2011) (internal
Accordingly, the reduction of her hours to zero may reasonably constitute an
act indicating to Plaintiff that her services were no longer needed.
determination of whether Plaintiff was terminated is an issue of fact the
resolution of which would be inappropriate at this stage.
Next, Defendants argue that the FLSA preempts the LWPS. Plaintiff
argues that her claims are not preempted because she is seeking recovery of
the amount that she was not paid over and above minimum wage. She argues
that because she can only seek minimum wage under FLSA, the LWPS allows
her to seek the additional amount of the hourly wage that she alleges she is
owed. Defendants do not rebut this argument on reply, and this Court can find
no reason why Plaintiff’s interpretation is incorrect. The language of the
LWPS “is unambiguously broad in scope; it mandates that an employer pay
any amount that an employee justifiably earns under the terms of his
employment.”18 The FLSA, on the other hand, requires only that an employer
pay its employees a minimum wage as set by the Act and does not address the
failure to pay agreed-upon wages.19 Accordingly, Plaintiff is entitled to seek
the amount she is owed over and above minimum wage through the LWPS,
and her claim is not preempted.20
Finally, Defendants again argue that “for the reasons outlined above”
LCMC is not Plaintiff’s employer and therefore cannot be held liable under the
However, the analysis used to determine whether a party is an
Kidder v. Statewide Transp., Inc., 129 So. 3d 875, 881 (La. App. 3 Cir. 2013).
29 U.S.C. § 206.
20 See Hendrix v. Delta Air Lines, Inc., 234 So. 2d 93, 95 (La. App. 4 Cir. 1970) (“The
federal law makes no provision for or against penalties for mere failure to pay admittedly
due agreed-upon wages promptly upon termination of employment. We conclude there is no
preemption on this question by the Fair Labor Standards Act . . . .”).
employer under the LWPS differs from the FLSA analysis discussed above.
“[I]t is not the actual supervision or control which is actually exercised by the
employer that is significant, but whether, from the nature of the relationship,
the right to do so exists.”21
Louisiana courts look to the following, non-exclusive factors to
determine whether an individual is an employee for the purposes
of the LWPA: (1) whether there is a valid contract between the
parties; (2) whether the work being done is of an independent
nature such that the contractor may employ nonexclusive means
in accomplishing it; (3) whether the contract calls for specific
piecework as a unit to be done according to the independent
contractor’s own methods, without being subject to the control and
direction of the principal, except as to the result of the services to
be rendered; (4) whether there is a specific price for the overall
undertaking agreed upon; and (5) whether the duration of the work
is for a specific time and not subject to termination or
discontinuance at the will of either side without a corresponding
liability for its breach.22
Defendants provide no analysis of these factors to support their argument that
LCMC is not Plaintiff’s employer for purposes of the LWPS.
Plaintiff’s Complaint has likewise failed to allege any facts to support a finding
that LCMC is her employer under the LWPS. Plaintiff has not alleged that
she had a contract with LCMC, to what extent LCMC controlled her work, or
to what extent LCMC had a right to control her work. Accordingly, Plaintiff’s
Complaint does not allege facts that would support a finding that LCMC is her
Mendoza v. Essential Quality Const., Inc., 691 F. Supp. 2d 680, 686 (E.D. La.
employer under the LWPS, and therefore Plaintiff cannot succeed on a claim
under the LWPS against LCMC.
2. Louisiana Whistleblower Act
Finally, Defendants allege that Plaintiff has failed to state a claim under
the Louisiana Whistleblower Act.
Louisiana’s Whistleblower Act forbids
retaliation when an employee “discloses or threatens to disclose a workplace
act or practice that is in violation of state law.”23 To prevail on a whistleblower
claim, “the plaintiff must establish an actual violation of state law.”24
Defendants allege that Plaintiff cannot succeed on her whistleblower claim
because she cannot show an actual violation of state law. Plaintiff alleges that
the state law violation supporting her whistleblower claim is the criminal theft
of her wages. Defendants rebut that the mere failure to make payments does
not amount to criminal theft.
Under Louisiana law, criminal theft is “the misappropriation or taking
of anything of value which belongs to another, either without the consent of
the other to the misappropriation or taking, or by means of fraudulent conduct,
practices, or representations. An intent to deprive the other permanently of
whatever may be the subject of the misappropriation or taking is essential.”25
Criminal theft is a crime of specific intent. Plaintiff’s Complaint does not
contain any allegations that Defendants possessed the specific intent to
deprive her of her property. In addition, “[a] reasonable and honest belief that
one owns an interest in property precludes a finding that he intended to
La. Rev. Stat. § 23:967(A).
Odeh v. City of Baton Rouge/Par. of E. Baton Rouge, 191 F. Supp. 3d 623, 628 (M.D.
25 La. Rev. Stat. § 14:67.
permanently deprive the owner of the property.”26 This Court notes that it is
likely that Defendants believed that their policies complied with FLSA, and
they therefore lack the requisite intent for criminal theft.
Plaintiff has failed to allege a claim under the Louisiana Whistleblower
Statute, and this claim is dismissed.
For the foregoing reasons, Defendants’ Motion is GRANTED IN PART.
Defendant Louisiana Children’s Medical Center is DISMISSED WITHOUT
PREJUDICE. Plaintiff’s collective action allegations and whistleblower claim
are likewise DISMISSED WITHOUT PREJUDICE. Plaintiff is granted leave
to amend her Complaint within 20 days of this Order to the extent that she
can remedy the deficiencies identified herein.
New Orleans, Louisiana this 19th day of April, 2017.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
State v. Henry, 73 So. 3d 958, 966 (La. App. 2 Cir. 2011).
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