NICHOLS et al v. ANDROSCOGGIN COUNTY

Filing 18

ORDER denying 7 Motion to Dismiss By JUDGE NANCY TORRESEN. (rmb)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KEVIN NICHOLS and
ANDROSCOGGIN COUNTY
EMPLOYEE ASSOCIATION,
Plaintiffs,
v.
ANDROSCOGGIN COUNTY,
Defendant

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Docket No. 2:14-cv-421-NT

ORDER ON DEFENDANT’S MOTION TO DISMISS
The Defendant’s motion to dismiss challenges: (1) whether there is a basis for
the Plaintiffs’ statutory wage claims; (2) whether the wage claims have already been
decided in arbitration; (3) whether the state and federal wage claims are preempted
by federal law; and (4) whether there are actionable FLSA and Maine wage claims.
The Plaintiffs object to the motion. The Defendant’s Motion to Dismiss will be
DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
In this lawsuit, the Plaintiffs, Kevin Nichols (“Nichols”) and the Androscoggin
County Employee Association (“ACEA”), are seeking to recover unpaid wages and
overtime pay that they claim are due from the Defendant, Androscoggin County (the
“County”).

Nichols has been an employee of Androscoggin County in various

capacities since 2009. In 2012 and 2013, Nichols was employed as a law enforcement
officer, and during that time the ACEA was the collective bargaining agent for certain
County Patrol, Dispatch, and Corrections employees. ACEA arbitrated a claim

against Androscoggin County related to Nichols’s rate of pay under the 2011-2012
Collective Bargaining Agreement (“CBA”). The arbitration decision was issued on
October 8, 2013, finding Nichols’s “current rate of pay to be $18.95 per hour under
the 2011-2012 CBA” and awarding Nichols “back pay from the date his wage was
reduced, excluding the night differential.”

Arbitration Award (ECF No. 12-1).

Thereafter, Nichols contends, the County failed to provide the back pay that was due
for the period of October 12, 2012 through December 20, 2012. Am. Comp. ¶¶ 14, 20
(ECF No. 3-8). In addition, Nichols contends, the County incrementally deducted
$28.56 from his weekly pay1 without authorization and failed to provide him with the
appropriate amount of overtime pay. Am. Comp. ¶ 14.
Nichols originally filed this action in Maine Superior Court against
Androscoggin County asserting two counts: Count I seeking confirmation of the
arbitration award, and Count II alleging a violation of Maine’s Wages and Medium
of Payment Act, 26 M.R.S. § 626-A. Comp. (ECF No. 3-4). The Defendant filed a
motion to dismiss and Nichols filed a response and a motion to amend his complaint
to include the ACEA as a Plaintiff and to add a third Count asserting a claim under
the Fair Labor Standards Act (“FLSA”) for unpaid overtime. The Superior Court
granted the Plaintiff’s motion to amend and an amended complaint was filed. The
Defendant removed the case to this court based on this Court’s original jurisdiction
over the FLSA claim pursuant to 28 U.S.C. § 1331. Thereafter, the parties filed
supplemental briefs on the motion to dismiss.

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The total amount of payroll deductions was $342.72. Am. Comp. ¶ 15.

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LEGAL STANDARD
The Defendant has moved pursuant to Rule 12(b) to dismiss Counts II and III.2
Based on the arguments presented, I assume the grounds for the motion is failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).3 A motion to
dismiss for failure to state a claim under Rule 12(b)(6) tests the “legal sufficiency” of
a complaint. Gomes v. Univ. of Me. Sys., 304 F. Supp. 2d 117, 120 (D. Me. 2004). The
general rules of pleading require a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain
statement need only “give the defendant fair notice of what the claim is and the
grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)
(internal quotation marks and alterations omitted). However, “[t]o survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). “The plausibility standard is not akin
to a probability requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (internal quotation marks omitted).
Faced with a motion to dismiss, the Court must examine the factual content of
the complaint and determine whether those facts support a reasonable inference
“that the defendant is liable for the misconduct alleged.” Id. In conducting this

With respect to Count I, the Defendant “consents to the entry of judgment enforcing the
award.” Mot. to Dismiss 2 (ECF No. 3-5).
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To the extent that the Defendant’s original motion to dismiss can be understood to raise a Rule
12(b)(1) challenge to the court’s jurisdiction, I find that there is federal jurisdiction over the FLSA
claim, 28 U.S.C. § 1331, and supplemental jurisdiction over the other claims, 28 U.S.C. § 1367.
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examination, the Court must accept as true all well-pleaded factual allegations in the
complaint and draw all reasonable inferences in plaintiff’s favor. Gargano v. Liberty
Int’l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009). However, the Court need not
accept “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements.” Iqbal, 556 U.S. at 678. In distinguishing sufficient from
insufficient pleadings, a “context-specific task,” courts must “draw on [] judicial
experience and common sense.” Id. at 679 (internal citation omitted).
DISCUSSION
I. Availability of Statutory Wage Claims
Citing the Maine Uniform Arbitration Act, 14 M.R.S.A. §§ 5951-5963, 5943,
the Defendant contends that the arbitration provision of the CBA is the sole and
exclusive remedy for failure to pay wages due under the terms of the CBA. Mot. to
Dismiss at 2-3 (ECF No. 3-5). The Plaintiffs respond that arbitration under a union
contract does not bar statutory wage and hour claims. Pls.’ Opp’n to Def.’s Mot. to
Dismiss 8-9 (ECF No. 3-6).
On more than one occasion the Supreme Court has held that arbitration of
contract-based claims pursuant to a collective bargaining agreement does not
preclude subsequent judicial resolution of statutory claims. See Alexander v.
Gardner–Denver Co., 415 U.S. 36 (1974); Barrentine v. Arkansas–Best Freight Sys.,
Inc., 450 U.S. 728 (1981); McDonald v. City of West Branch, 466 U.S. 284 (1984).
Barrentine contains broad language strongly suggesting that FLSA claims are never
appropriate for arbitration. Barrentine, 450 U.S. at 742–45. More recently, however,

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in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009), the Supreme Court held that a
provision requiring the arbitration of statutory age discrimination claims was
enforceable, and indicated that unless a statutory scheme specifically removed a
“particular class of grievances from the [National Labor Relations Act’s] broad
sweep,” a CBA’s arbitration clause should be given full effect.4 Id. at 257–58. In
reaching this conclusion, Pyett disapproved of Barrentine and similar opinions
addressing other employment statutes insofar as they suggested that federal
statutory claims could not be addressed properly through arbitration. Id. at 265–72.
It is well-settled that a waiver in a collective bargaining agreement must be
established by clear and express contractual language. As the Supreme Court has
stated, “we will not infer from a general contractual provision that the parties
intended to waive a statutorily protected right unless the undertaking is ‘explicitly
stated.’ More succinctly, the waiver must be clear and unmistakable.” Metropolitan
Edison Co. v. NLRB, 460 U.S. 693, 708 (1983); Cavallaro v. Univ. of Mass. Mem’l
Healthcare, Inc., 678 F.3d 1, 7 n. 7 (1st Cir. 2012) (“A broadly-worded arbitration
clause such as one covering ‘any dispute concerning or arising out of the terms and/or
conditions of [the CBA] . . . ’ will not suffice [to establish waiver]; rather, something
closer to specific enumeration of the statutory claims to be arbitrated is required.”).
The Defendant does not assert that the CBA in this case provides a specific waiver of

The CBA at issue in Pyett provided “All such [statutory discrimination] claims shall be subject
to the grievance and arbitration procedures . . . as the sole and exclusive remedy for violations.
Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.”
Pyett, 556 U.S. at 252.
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statutory rights. Mot. to Dismiss 2. The CBA attached to the Plaintiffs’ Supplemental
Brief does not waive the right to a judicial forum for statutory violations as the
collective bargaining agreement did in Pyett. Accordingly, the plaintiffs are not bound
by the CBA to arbitrate these statutory claims.
II. Relitigation of Arbitration Decision
The Defendant also contends that the Plaintiffs ask the court to “disregard the
arbitration provision in the bargained-for CBA and Maine statute and hit the reset
button, forcing the parties to re-litigate the matter from the beginning.” Def.’s
Supplemental Mot. to Dismiss 2. I do not understand the Plaintiffs’ amended
complaint to seek relitigation of issues determined in the arbitration decision. For
example, the amended complaint provides that “the County did not pay per the
[arbitration] decision, continuing to maintain that they were not obligated to pay
prior to December 20, 2012.” Am. Comp. ¶ 20. Moreover, Count I of the Plaintiffs’
amended complaint seeks confirmation and enforcement of the arbitration award, not
relitigation of the issues decided there.
III.

Labor Management Relations Act

Next, the Defendant asserts that the Plaintiffs’ FLSA and state law claims are
preempted by the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185(a).5
Section 301 of the LMRA grants federal courts concurrent jurisdiction over actions
for breach of contract based on a collective bargaining agreement between a union

The LMRA excludes from the scope of its coverage an “employer” like Androscoggin County
that is a “State or political subdivision thereof.” 29 U.S.C. § 152(2). Although the parties have not
addressed the issue, I question whether the LMRA covers Androscoggin County.
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and an employer.6 Not every dispute involving a CBA is preempted by § 301. The
FLSA is a federal cause of action independent from a contract claim,7 and while the
employer may have defenses arising from the CBA, the FLSA claim itself does not
depend on the CBA. See Watts v. United Parcel Serv., Inc., 701 F.3d 188 (6th Cir.
2012) (court reversing district court’s dismissal of employee’s ADA claim against her
employer on the basis of LMRA preemption). With respect to the Plaintiffs’ statutory
claims, it is not apparent at this point in the proceedings that the FLSA and state
law claims depend on interpretation of the CBA. Lingle v. Norge Div. of Magic Chef,
Inc., 486 U.S. 399, 409–10 (1988) ( “[A]s long as the state-law claim can be resolved
without interpreting the agreement itself, the claim is ‘independent’ of the agreement
for § 301 pre-emption purposes.”). Therefore, neither the state nor federal claim in
this case is preempted by the LMRA.
IV. FLSA Claim
With respect to Count III, the Defendant contends that in 2012 it took twelve
separate deductions of $28.56 from Nichols’s pay to recoup an earlier overpayment.
These payroll deductions, the Defendant asserts, were the sole basis for Nichols

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The statute provides:
Suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce as defined in this chapter,
or between any such labor organizations, may be brought in any district court of the
United States having jurisdiction of the parties, without respect to the amount in
controversy or without regard to the citizenship of the parties.

20 U.S.C. § 185(a).
Preemption is based on the Supremacy Clause of the United States Constitution and deals
with the effect of federal law on conflicting state law. The Defendant has not explained how a federal
law could be preempted by another federal law.
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receiving less than one and a half times his regular rate of pay for time worked over
43 hours and thus cannot not amount to a FLSA violation.
The amended complaint alleges that Nichols worked in excess of 43 hours for
a number of weeks and that during these weeks “defendant deducted $28.56.” Am.
Comp. ¶¶ 37-42. For each week that overtime was due, the “[D]efendant paid plaintiff
Nichols less than one and one half times his regular rate of pay for hours worked over
43.” Am. Comp. ¶ 43. The amended complaint does not state, as the Defendant
suggests, that it was as a result of these deductions that Nichols received “less than
one and one half times his regular rate of pay for hours worked over 43.” Am. Comp.
¶ 43. I do not understand the Plaintiffs’ amended complaint or the briefing to concede
that recoupment of an overpayment alone resulted in Nichols not being paid an
appropriate overtime rate.8
V. Maine Wages and Medium of Payment Act Claim
With respect to Count II, the Defendant asserts that 26 M.R.S. § 626-A is not
an independent cause of action, but a penalties provision for substantive violations of
Maine’s wage and hour laws. Def.’s Supplemental Br. on Mot. to Dismiss 6-7 (ECF
No. 11). While it is true that section 626-A is not the source of any substantive rights,
section 621-A does provide a basis for the Plaintiffs’ claim. A plaintiff does not need
to point to the exact statute which entitles him to relief, so long as the complaint
states a claim for relief that is plausible on its face. Morales–Vallellanes v. Potter, 339

The Plaintiffs assert that “Nichols worked hours substantially in excess of 43 in five separate
weeks during late 2012.” Pls.’ Opp’n to Def.’s Mot. to Dismiss 7.
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F.3d 9, 14 (1st Cir. 2003) (citation omitted) (“A complaint sufficiently raises a claim
even if it points to no legal theory or even if it points to the wrong legal theory as a
basis for that claim, as long as relief is possible under any set of facts that could be
established consistent with the allegations.”). Therefore, I decline to dismiss Count
II simply because the Plaintiffs failed to cite the statute that confers the substantive
right under which they sue.9
CONCLUSION
For the reasons stated above, I DENY the Defendant’s motion to dismiss.
SO ORDERED.
/s/ Nancy Torresen
United States Chief District Judge
Dated this 11th day of May, 2015.

The Defendant also moves to dismiss Count II because “Nichols cannot state a cause of action
under section 626 because he is still employed by the County” and section 626 “relates to an employee’s
rights after the end of his employment.” Def.’s Supplemental Br. on Mot. to Dismiss 7. The Defendant
correctly identifies that 26 M.R.S. § 626 supplies a worker’s to rights after cessation of employment,
but the Plaintiffs are not seeking recovery under section 626, rather the amended complaint states
that they are seeking recovery under section 626-A.
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