Williams v. Superior Hospitality Staffing, Inc. et al
Filing
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ORDER AND REASONS - IT IS ORDERED that the Motion to Dismiss for Failure to State a Claim, and/or Motion for More Definite Statement (Rec. Doc. 11 ) is GRANTED IN PART. Plaintiff's FLSA claims are DISMISSED WITHOUT PREJUDICE. Only Plaintiff 9;s state law claim remains. Plaintiff shall amend her Complaint within 20 days of this Order to the extent that she can remedy the deficiencies identified herein. Failure to amend will result in the sua sponte dismissal of this matter for lack of subject matter jurisdiction. Signed by Judge Jane Triche Milazzo on 1/7/2019. (sa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TANIZIA WILLIAMS
CIVIL ACTION
VERSUS
NO: 18-2793
SUPERIOR HOSPITALITY
STAFFING INC. ET AL.
SECTION: “H”(1)
ORDER AND REASONS
Before the Court is Defendants’ Motion to Dismiss, or alternatively,
Motion for More Definite Statement (Doc. 11). For the following reasons, the
Motion is GRANTED IN PART.
BACKGROUND
Plaintiff Tanzania Williams brings both individual claims and a
collective action against her former employer under the Fair Labor Standards
Act (FLSA) and the Louisiana Wage Payment Statute (LWPS). Plaintiff alleges
that Defendants Superior Hospitality Staffing, Inc.; Superior Hospitality
Systems, Inc.; Superior Hospitality Management Systems, Inc.; and Superior
Hospitality Janitorial Services, Inc. are her joint employers.
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Plaintiff alleges that she worked for Defendants as a staffing employee,
such as a bartender or server, from December 2017 to March 2018 at an hourly
rate of $11.00 to $16.00. She alleges that she has not been paid for her work
despite repeated demands and is aware of other employees that likewise have
not been paid or were paid late “as a part of Defendants’ routine practice of
delaying payment and withholding employee’s paychecks, including final
paychecks.” 1 She alleges that this practice violates the FLSA’s minimum wage
and overtime requirements and seeks to bring an FLSA collective action.
Plaintiff also brings an individual claim under the LWPS, alleging that
Defendants failed to pay her hourly rate in excess of minimum wage for each
hour she worked.
Defendant now moves to dismiss Plaintiff’s claims, alleging that her
LWPS claim is preempted and that she has otherwise failed to state a claim
for relief. In the alternative, Defendant seeks a more definite statement.
LEGAL STANDARD
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.” 2 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.” 3
A court must accept the complaint’s factual allegations as true and must “draw
Doc. 1.
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007)).
3 Id.
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all reasonable inferences in the plaintiff’s favor.” 4 The court need not, however,
accept as true legal conclusions couched as factual allegations. 5 To be legally
sufficient, a complaint must establish more than a “sheer possibility” that the
plaintiff’s claims are true. 6 If it is apparent from the face of the complaint that
an insurmountable bar to relief exists and the plaintiff is not entitled to relief,
the court must dismiss the claim. 7
The court’s review is 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
This Court will address each of Defendants’ arguments for dismissal in
turn.
I.
LWPS Preemption
Plaintiff brings an individual 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. 9 Defendants argue that the FLSA
preempts the LWPS, and Plaintiff’s claim should therefore be dismissed.
Plaintiff argues that her claim is 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
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
Iqbal, 556 U.S. at 678.
6 Id.
7 Lormand, 565 F.3d at 255–57.
8 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
9 LA. REV. STAT. § 23:631.
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LWPS allows her to seek the additional amount of the hourly wage that she
alleges she is owed.
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.” 10 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. 11 Defendant does
not cite to any case holding that a claim for the amount owed over and above
minimum wage is preempted by the FLSA, nor could this Court find any. 12
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. 13
II.
FLSA Claim
Defendants next argue that Plaintiff’s Complaint fails to state a claim
under the FLSA for failure to pay minimum wage or overtime. An employer
violates the FLSA if it fails to pay covered employees at least one and one-half
Kidder v. Statewide Transp., Inc., 129 So. 3d 875, 881 (La. App. 3 Cir. 2013).
29 U.S.C. § 206.
12 The cases cited by Defendant hold only that a plaintiff cannot seek overtime
payment or penalties under both the FLSA and LWPS. See Little v. Mizell, CV 15-268, 2016
WL 3430489, at *4 (E.D. La. June 22, 2016); Divine v. Levy, 36 F. Supp. 55, 58 (W.D. La.
1940).
13 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 . . . .”); Tillman v. Louisiana
Children’s Med. Ctr., No. CV 16-14291, 2017 WL 1399619, at *3 (E.D. La. Apr. 19, 2017); see
also Banks v. First Student Mgmt. LLC, 237 F. Supp. 3d 397, 402 (E.D. La. 2017) (“[W]hile
the Fifth Circuit has not addressed the validity of such claims, several district courts in this
circuit have held that ‘gap time’ claims for unpaid straight time wages, which do not implicate
the overtime or minimum wage requirements, are generally not viable under the FLSA.”).
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times their normal rate for hours worked in excess of 40 hours per week or fails
to pay covered employees a minimum wage. 14 Thus, to state a claim for unpaid
overtime or minimum wages under the FLSA, a plaintiff must plead: “(1) that
there
existed
an
employer–employee
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
or minimum wage requirements; and (4) the amount of overtime or minimum
wage compensation due.” 15 The pleading requirements are satisfied in the
FLSA context when the complaint contains the “‘approximate date ranges, as
well as the approximate number of hours worked’ for which the plaintiff claims
he was under-compensated.”
Defendants argue that Plaintiff’s Complaint fails to state a claim for
failure to pay minimum wage under the FLSA where it alleges only that
Plaintiff’s rate of pay was $11.00 to $16.00, well above the minimum wage.
This Court disagrees. Plaintiff’s Complaint also alleges that she worked for
Defendants from December 2017 to March 2018 and has not received any
payment for her work. It is clear then from the Complaint that regardless of
the agreed-upon hourly rate, Plaintiff alleges that Defendants failed to pay her
any amount for her work. 16 Accordingly, Plaintiff’s allegations are sufficient to
state a claim under the FLSA for failure to pay minimum wage.
29 U.S.C. §§ 206, 207.
Mejia v. Brothers Petroleum, LLC, No. 12-2842, 2015 WL 3619894, at *2 (E.D. La.
June 9, 2015) (quoting Johnson v. Heckmann Water Resources, Inc., 758 F.3d 627, 630 (5th
Cir. 2014)).
16 Defendants’ contention that this allegation is false is not appropriate for
consideration at the motion to dismiss stage.
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Defendants next allege that Plaintiff’s Complaint fails to state a claim
for failure to pay overtime under the FLSA where it does not state the number
of hours worked in excess of forty or even that her work ever exceeded forty
hours in a single week. A plaintiff meets her pleading burden by alleging the
amount that defendants paid, the time period during which she worked, that
she worked in excess of forty hours, and that she was never paid one-and-half
times their hourly rate. 17 Plaintiff alleges that she was paid between $11.00
and $16.00 an hour, that she worked for Defendants between December 2017
and March 2018, and that she was not paid overtime wages for hours worked
in excess of forty. Although Plaintiff does not expressly allege that she worked
in excess of forty hours in a single week, it is clear from the allegations of her
Complaint that she intends to allege such. There are sufficient allegations to
put Defendant on notice of Plaintiff’s FLSA overtime claim, even if it lacks this
express allegation. Accordingly, Plaintiff has sufficiently alleged a claim for
FLSA overtime payment.
III.
Collective Action Allegations
Defendants next allege that the allegations of Plaintiff’s Complaint are
insufficient to state a claim for a collective action. Plaintiff rebuts that
Defendants’ arguments are best addressed at the class certification stage, not
on a motion to dismiss.
“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
17
2015).
Palma v. Tormus Inc., No. 15-3025, 2015 WL 13048727, at *3 (E.D. La. Dec. 23,
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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
the issue.” 18 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.’” 19
Here, Plaintiff’s Complaint seeks to bring a collective action on behalf of
all hourly staffing employees who have previously worked or currently work
for Defendants since March 2015 and were not paid for all hours worked as a
result of Defendants’ policy of delaying or withholding paychecks. 20 Such
allegations are more than sufficient to put Defendants on notice of the putative
class and allow Plaintiff to proceed to the conditional certification stage.
IV.
Joint Employer Allegations
Finally, Defendants allege that Plaintiff’s Complaint fails to set forth
sufficient facts showing that each Defendant is her employer under the terms
of the FLSA. “In order to establish a claim for retaliation or failure to
compensate under the FLSA, there must first be an employer-employee
18
2012).
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. 122277, 2013 WL 1867199, at *4 (E.D. La. May 2, 2013); see also Creech v. Holiday CVS, LLC,
No. 11-46, 2012 WL 4483384, at *1 (M.D. La. Sept. 28, 2012)).
20 Doc 1., ¶20.
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relationship.” 21 Plaintiff’s Complaint alleges that all Defendants—Superior
Hospitality Staffing, Inc.; Superior Hospitality Systems, Inc.; Superior
Hospitality Management Systems, Inc.; Superior Hospitality Janitorial
Services, Inc.; and Shane Milliet—are her joint employers.
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.” 22 To
determine whether an individual or entity is an employer, the Fifth Circuit
applies the “economic realities test” and 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.” 23 “[E]ach individual or entity alleged to be
an employer . . . must satisfy the four part test.” 24
Plaintiff’s Complaint alleges that Defendant Shane Milliet is the sole
manager/owner of each of the other Defendant entities and that the
Defendants are so “intertwined as to be indistinguishable.” 25 The Complaint
further alleges that “Defendants jointly exercised control over the Plaintiff’s
and FLSA Collective Action Plaintiffs’ schedules, rates of pay, how they
performed their jobs and the equipment they used to perform their jobs.” 26
Mendoza v. Essential Quality Const., Inc., 691 F. Supp. 2d 680, 684 (E.D. La. 2010).
29 U.S.C. § 203(d).
23 Gray v. Powers, 673 F.3d 352, 355 (5th Cir. 2012).
24 Id.
25 Doc. 1, ¶16.
26 Doc. 1, ¶17.
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Defendants contend that these allegations are conclusory and insufficient to
state a claim against Defendants as joint employers.
Plaintiff’s allegations attempt to paint Defendants as a “joint enterprise”
that jointly exercised control over elements of her employment. 27 However,
under the FLSA, the “enterprise” theory is inapplicable to the joint employer
analysis. 28 “The FLSA concept of ‘enterprise’ does not abrogate the need for the
plaintiff to show that he suffered injury at the hands of each individual
defendant, even if the defendants are related corporations.” 29 Here, Plaintiff’s
allegation that the Defendants acted jointly in exercising control over her is
insufficient for this Court to consider the factors of the economic realities test
as to each Defendant. Plaintiff has failed to plead that she was “simultaneously
employed by two or more employers,” pleading instead that she was
“simultaneously employed by all the Defendants, because of the Defendants’
relationships with each other.” 30 Allegations of a joint enterprise are
insufficient to establish that Defendants are joint employers of Plaintiff.
Accordingly, Plaintiff has failed to plead a necessary element of her FLSA
claims, and they are dismissed on that ground.
Doc. 12. p.13.
Joaquin v. Coliseum Inc., No. A-15-CV-787-LY, 2016 WL 3906820, at *5–6 (W.D.
Tex. July 13, 2016), report and recommendation approved sub nom. Joaquin v. Hinojosa,
No. A-15-CV-787-LY, 2016 WL 7647630 (W.D. Tex. Aug. 2, 2016); see 29 U.S.C. § 203(s).
29 Joaquin, 2016 WL 3906820, at *5–6 (quoting Lucas v. BMS Enterprises, Inc., No.
309-CV-2159-D, 2010 WL 2671305, at *3 (N.D. Tex. July 1, 2010)).
30 Id. at *7.
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CONCLUSION
For the foregoing reasons, Defendants’ Motion is GRANTED IN PART,
and Plaintiff’s FLSA claims are DISMISSED WITHOUT PREJUDICE. Only
Plaintiff’s state law claim remains. Plaintiff shall amend her Complaint within
20 days of this Order to the extent that she can remedy the deficiencies
identified herein. Failure to amend will result in the sua sponte dismissal of
this matter for lack of subject matter jurisdiction.
New Orleans, Louisiana this 7th day of January, 2019.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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