Tall v. MV Transportation

Filing 18

MEMORANDUM OPINION (c/m to Plaintiff 6/30/14 sat). Signed by Chief Judge Deborah K. Chasanow on 6/30/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
HESMAN TALL
:
v.

:

Civil Action No. DKC 13-2306

:
MV TRANSPORTATION
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this Fair
Labor Standards Act (“FLSA”) case is the motion to dismiss filed
by

Defendant

MV

“Defendant”).

Transportation,
(ECF

No.

8).

Inc.
Also

(“MV

Transportation”

pending

is

a

motion

or
to

strike/deny Defendant’s motion to dismiss, filed by Plaintiff
Hesman Tall.

(ECF No. 10).

The issues have been fully briefed,

and the court now rules, no hearing being deemed necessary.
Local Rule 105.6.

For the following reasons, Defendant’s motion

to

be

dismiss

will

granted

in

part

and

denied

in

part.

Plaintiff’s motion to strike will be construed as an opposition
to Defendant’s motion to dismiss.
I.

Background
Plaintiff, proceeding pro se, brought a complaint against

MV

Transportation

on

August

8,

2013,

for

unpaid

wages

and

(ECF No. 1).1

overtime under the FLSA, 29 U.S.C. § 201 et seq.
MV

Transportation

employed

Plaintiff

as

a

Paratransit

Driver/Operator from September 2009 until January 6, 2011.
at 2).

(Id.

Operating out of Beltsville, MD, Plaintiff was paid on

an hourly basis and drove various routes in the Washington-Metro
area.

Plaintiff alleges that within the last two years, he did

not receive any compensation for “federally-mandated overtime
when such work exceeded 40 hours per week.”

(Id.).

Plaintiff

contends that he was forced to attend personal meetings with
supervisors in connection with his duties as an operator and
that he was required to stay off the clock for time spent in
these meetings.
Defendant

(Id. at 3).

instituted

a

very

Plaintiff further asserts that
time-consuming

and

uncompensated

process for submitting route paperwork, where payment for hours
already worked was contingent upon completion of such paperwork.
(Id. 3-4).

Plaintiff asserts that “Defendant has refused to pay

me for any [r]oute form and mandated claim forms and has failed
to pay me the federally-mandated 1.5 times my regular rate of
pay when such time caused my hourly work total to exceed 40
hours per week.”

(Id. at 4).

Plaintiff also contends that

within the last two years, he was not compensated for: pre-trip

1

The docket erroneously reflects that Plaintiff filed a
supplemental complaint on August 12, 2013, but this document is
actually a duplicate of the original complaint.
(See ECF No.
3).
2

or post-trip inspection of the vehicle he operated; the time
during the break of his split shifts; start travel time when
relieving
another

another

operator;

operator;

end

split-shift

travel

travel

time

time;

and

when

relieving

route

waiting

time, when he was forced to wait to begin his shift and then
occasionally told that there was no work for him.

(Id. at 4-5).

On October 9, 2013, Plaintiff filed an addendum to his
complaint, which includes additional allegations.
Specifically,

Plaintiff

asserts

that

Defendant

(ECF No. 6).
forced

him

to

work twelve to fourteen hour days, “which caused driver fatigue
and hazards to passenger/patient safety,” and that he was not
compensated
Plaintiff

for

also

the

overtime

alleges

that

hours

worked.

Defendant

(Id.

frequently

at

failed

3).
to

provide an eight-hour rest period between shifts and threatened
Plaintiff’s job security for complaining about lack of sleep.
Defendant also allegedly subtracted wages from Plaintiff’s pay
by deducting the value of passenger fares, tokens, and fare
cards and forced Plaintiff to accept bus tokens and fare cards
as part of his salary.

(Id.).

Defendant moved to dismiss on October 10, 2013.
8).

On

October

17,

2013,

instead

of

filing

an

(ECF No.

opposition,

Plaintiff moved to strike/deny Defendant’s motion to dismiss,
which will be construed as his opposition.
the

opposition,

Plaintiff

makes
3

new

(ECF No. 10).

factual

allegations

In
to

support

his

FLSA

claims

and,

for

the

first

time,

asserts

a

violation of Section 8(a)(5) of the National Labor Relations Act
(“NLRA”).

Plaintiff also includes fourteen exhibits to support

both

previous

his

and

newly-asserted

contentions,

incident reports, time logs, and payroll forms.
to 10-14).
13).

including

(ECF Nos. 10-1

Defendant replied on October 29, 2013.

(ECF No.

On November 20, 2013, Plaintiff filed a request that the

court accept the allegations in his opposition as a supplement
to the complaint.
II.

(ECF No. 14).

Analysis
Plaintiff includes new allegations in the opposition and

submits supporting exhibits which were not included in either
his original complaint or the addendum filed in October 2013.
In the reply brief, Defendant urges the court to dismiss the
complaint and disregard the new allegations in the opposition.
Defendant is correct to point out that Plaintiff cannot amend
his

complaint

should

be

Erickson

made

complaint,

v.

through

an

opposition,

considering

Pardus,

however

551

Plaintiff’s

U.S.

inartfully

89,

94

pleaded,

but
pro

certain
se

(2007)
must

be

allowance

status.
(“[A]
held

See

pro
to

se

less

stringent standards than formal pleadings drafted by lawyers.”).
The new facts in Plaintiff’s opposition will be considered to
determine whether Plaintiff should be granted leave to amend his
complaint if the complaint is otherwise subject to dismissal.
4

Defendant

argues

that

Plaintiff’s

claims

should

be

dismissed because they are either time-barred or fail to support
an actionable FLSA claim.

(ECF No. 13).

In evaluating the

complaint, unsupported legal allegations need not be accepted.
Revene v. Charles Cnty. Comm’rs, 882 F.2d 870, 873 (4th Cir.
1989).

Legal conclusions couched as factual allegations are

insufficient, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), as
are conclusory factual allegations devoid of any reference to
actual events.

United Black Firefighters v. Hirst, 604 F.2d

844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588
F.3d 186, 193 (4th Cir. 2009).

“[W]here the well-pleaded facts

do not permit the court to infer more than the mere possibility
of

misconduct,

the

complaint

has

alleged,

but

it

has

‘show[n] . . . that the pleader is entitled to relief.’”
556

U.S.

at

679

(quoting

Fed.R.Civ.P.

8(a)(2)).

not

Iqbal,
Thus,

“[d]etermining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”

Id.

The statute of limitations is an affirmative defense that a
party typically must raise in a pleading under Fed.R.Civ.P.8(c)
and is not usually an appropriate ground for dismissal.

See

Eniola v. Leasecomm Corp., 214 F.Supp.2d 520, 525 (D.Md. 2002);
Gray v. Metts, 203 F.Supp.2d 426, 428 (D.Md. 2002).
5

Dismissal,

however,
reveals

is
the

proper

“when

existence

the

of

a

face

of

the

meritorious

complaint

affirmative

clearly

defense.”

Brooks v. City of Winston–Salem, North Carolina, 85 F.3d 178,
181

(4th

Cir.

1996);

see

5B

Charles

A.

Wright

&

Arthur

R.

Miller, Federal Practice & Procedure § 1357, at 714 (3d ed. 2004)
(“A complaint showing that the governing statute of limitations
has run on the plaintiff's claim for relief is the most common
situation in which the affirmative defense appears on the face
of the pleading and provides a basis for a motion to dismiss
under Rule 12(b)(6).”).
A.

Statute of Limitations

The FLSA provides for a two-tiered statute of limitations,
depending on the standard of culpability Plaintiff can prove.
29 U.S.C. § 255(a).
FLSA

action

accrued.

within

By default, a plaintiff must commence an
two

years

29 U.S.C. § 255(a).

of

when

the

cause

of

action

If Plaintiff can prove a “willful

violation” of the FLSA, however, the period to commence an FLSA
cause of action is extended to three years.

Id.

To establish

willfulness, the plaintiff must show that “the employer either
knew or showed reckless disregard for the matter of whether its
conduct was prohibited by the [FLSA] statute.”

McLaughlin v.

Richland Shoe Co., 486 U.S. 128, 133 (1988); Butler v. DirectSAT
USA, LLC, 800 F.Supp.2d 662, 669 (D.Md. 2011).

6

Plaintiff was terminated in January 2011 and did not bring
his complaint until August 8, 2013.

Defendant argues that the

two-year statute of limitations applies because Plaintiff failed
to plead willfulness.

In the opposition, Plaintiff asserts that

the FLSA violations occurred within the last three years and he
attempts

to

plead

willfulness,

stating

that

he

sent

written

notices of unpaid wages and other FLSA violations to Defendant
in an effort to resolve payroll discrepancies, and the notices
were subsequently ignored.

(ECF No. 10, at 7).

notices

Defendant’s

could

demonstrate

Receipt of such

awareness

of

potential

minimum wage and overtime violations, and could also demonstrate
Defendant’s inaction in the face of violations.

See, e.g.,

Rankin v. Loews Annapolis Hotel Corp., Civil Case No. L-11-2711,
2012

WL

1632792,

[plaintiff]
[defendant]

uses

at

*2

(D.Md.

conclusory

‘wilfully,

May

7,

language

in

knowingly,

and

2012)

(“Although

contending

purposely’

engaged

that
in

unfair labor practices, he also references a written agreement
between [defendant] and its employees that precluded them from
recording their overtime.

The facts that he proffers concerning

this agreement, although sparse, are sufficient to support an
inference of willfulness, thus extending the FLSA’s statute of
limitations.”).

Plaintiff also alleges that Defendant failed to

compensate him for work performed beyond the forty hour week
despite forcing him to work twelve to fourteen hour days.
7

(Id.

at

9-10);

see,

sufficient

to

allegations

e.g.,
trigger

that

Butler,
the

800

three-year

defendant

required

allegation

further

time).

This

potential

knowledge

of

an

F.Supp.2d

FLSA

at

statute

plaintiff

of
to

demonstrates

violation.

See

669

(finding

limitations
work

unpaid

Defendant’s
Marshall

v.

Gerwill, 495 F.Supp. 744, 755 (D.Md. 1980) (finding that the
three-year statute of limitations applied to an employer who was
allegedly aware of continuing violations of the minimum wage
provisions).
If the three-year statute of limitations applies, however,
many of Plaintiff’s claims are still precluded.

Plaintiff filed

his original complaint on August 8, 2013, thus, to the extent he
relies on allegations preceding August 8, 2010 to support his
FLSA claim, these claims are time-barred.

(See ECF No. 1).

Consequently, to support his FLSA claims, Plaintiff can only
rely on allegations from August 8, 2010 to January 6, 2011, the
date he was terminated.2

2

Defendant argues that even assuming Plaintiff’s opposition
is construed as an amended complaint asserting a “willful”
violation of the FLSA, “any such claims would necessarily be
limited to the brief 2.5 month window of time between October
17, 2010 [] and January 6, 2011 (the date of his termination of
employment).” (ECF No. 13, at 9). Defendant suggests that the
statute of limitations should be calculated from October 2013,
when Plaintiff filed the addendum to the complaint.
Defendant
is mistaken. The amended complaint relates back to the date of
the original pleading. See Fed.R.Civ.P. 15(c)(1).
8

B.

Overtime and Minimum Wage Claims

Plaintiff alleges violations of the overtime and minimum
wage

provisions

of

the

FLSA.

Defendant

argues

that

the

surviving claims should be dismissed because they do not allege
an FLSA violation.

(ECF No. 13, at 1).

“The purpose of the

FLSA is ‘to protect all covered workers from substandard wages
and oppressive working hours.’”

Shaliehsabou v. Hebrew Home of

Greater Washington, Inc., 363 F.3d 299, 304 (4th Cir. 2004).
Section 206 states that “[e]very employer shall pay to each of
his employees who in any workweek is engaged in commerce or in
the

production

of

goods

for

commerce,

or

is

employed

in

an

enterprise engaged in commerce or in the production of goods for
commerce”

wages

of

at

least

$6.55

per

hour

for

any

work

performed prior to July 24, 2009, and $7.25 per hour thereafter.
29

U.S.C

§

206(a)(1).3

Section

207

requires

employers

to

compensate their employees “at a rate not less than one and onehalf times the regular rate” for any hours worked in excess of
forty per week.

29 U.S.C. § 207(a)(1).

“To state a prima facie

case under the FLSA, plaintiff must show ‘as a matter of just
and reasonable inference that the wages paid to him did not
satisfy the requirements of the FLSA.’”

Avery v. Chariots For

Hire, 748 F.Supp.2d 492, 496 (D.Md. Sept. 16, 2010) (quoting

3

The $7.25 per hour rate applies to Plaintiff’s surviving
claims.
9

Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1513 (11th
Cir. 1993)).
In support of the overtime claim, Plaintiff asserts that he
worked over forty hours a week but was not compensated one and a
half times his regular rate of pay.
motion

to

dismiss,

“absolutely

no

Defendant

facts

(ECF No. 10, at 9).

argued

regarding

when

that
this

Plaintiff
denial

of

In the
provided
overtime

purportedly occurred [] or the approximate[] number of hours of
overtime
Plaintiff

he

was

allegedly

submits,

as

denied.”

exhibits

to

(ECF
his

No.

8-1,

opposition,

at

5-6).

payroll

records that reflect that from August 2010 until January 2011,
he worked over forty hours on some weeks.

It is not clear,

however, whether he was compensated for the additional hours.
(See ECF No. 10-14, at 35-51).4

Viewing the allegations in the

light most favorable to Plaintiff and crediting his statement
that he was not paid for hours worked beyond forty, his overtime
claim may be viable.5

See, e.g., Hawkins v. Proctor Auto Serv.

Ctr., LLC, No. RWT 09cv1908, 2010 WL 1346416, at *1 (D.Md. Mar.
30, 2010) (finding sufficient to survive dismissal allegations
that plaintiff worked more than forty hours a week and that
4

Plaintiff cannot rely on payroll records before August 8,
2010 to support his overtime or minimum wage claims because they
precede the applicable three-year statute of limitations.
5

Exhibits N17-N25, (ECF No. 10-14, at 34-51), are the only
exhibits that fall within the three year statute of limitations.
10

defendants

did

not

compensate

him

for

overtime

hours).

Plaintiff will have twenty-one (21) days to file an amended
complaint to indicate exactly how many overtime hours he worked
each week between August 8, 2010 and January 2011, his regular
rate of pay at the time, and the amount he was compensated each
week when Defendant allegedly owed him overtime.
As

for

Plaintiff’s

the

minimum

claim

for

wage

unpaid

claim,
wages

Defendant
fails

contends

because

he

that
never

alleges that Defendant failed to pay him the minimum wage for
all the hours he worked.

Instead, Plaintiff alleges that he

performed work during certain hours of the day for which he was
not compensated.

He states that he was not paid for “a pre-trip

or post-trip inspection of the vehicle [he] was operating.

The

accumulated amount of time required to inspect the vehicle, for
one week, amounted to 2.5 hours.”

(ECF No. 10, at 7).

He

further contends that on August 14, 2010, he attended a meeting
with his supervisor from 4:44 p.m. to 5:08 p.m. and was required
to “stay off the clock before and during the meeting.” (Id. at
8).

Plaintiff alleges that he attended a company meeting on

October 29, 2010 from 8 p.m. to 9 p.m. regarding his duties as
an operator, but likewise remained uncompensated for this time.

11

(Id. at 9).6

Plaintiff also asserts that he needed to complete

route forms in order to be compensated, and the process for
completing the forms was very time consuming.
“The FLSA does not guarantee that employees are paid for
every hour of work and does not allow for employees to recover
more than the statutory minimum wage.”
501.

Avery, 748 F.Supp.2d at

In order to state a claim for a minimum wage violation

under the FLSA, Plaintiff must allege that he did not receive
compensation equal to or exceeding the product of the total
number of hours worked and the statutory minimum hourly rate
during a given week.

See Blankenship v. Thurston Motor Lines,

Inc., 415 F.2d 1193, 1198 (4th Cir. 1969).
analysis

is

compensated
twenty

four

not
for

whether

an

minutes

hour
of

of

the

Plaintiff

employee

personal

Thus, the relevant
was

safety

meeting

specifically

meeting

time,

but

time

or

rather,

whether the average wage per hour of work completed falls below
the minimum wage. Blankenship, 415 F.2d at 1198.
As
that

on

Defendant

points

those

out,

workweeks

Plaintiff

[falling

“makes

within

no

the

allegation
statute

of

limitations] [when] he was allegedly required to work ‘off-theclock,’

his

average

minimum wage.”

hourly

wage

fell

(ECF No. 13, at 6).

6

below

the

applicable

For instance, Plaintiff

Plaintiff’s references to meetings on October 17, 2009,
October 27, 2009, January 14, 2010, February 25, 2010, April 29,
2010, and May 30, 2010 are time-barred. (ECF No. 10, at 8-9).
12

submits

statements

of

“payroll

discrepancies”

from

the

applicable time period purporting to show that he was paid for
fewer hours than he actually worked.
29).

(See ECF No. 10-10, at 23-

But, because Plaintiff provides no information indicating

how much he was paid on a weekly basis and the number of hours
worked

each

week,

it

is

impossible

to

ascertain

whether

Plaintiff was or was not paid above the statutory minimum wage.
In other words, Plaintiff must demonstrate that for each week
between

August

8,

2010

and

January

2011

when

he

alleges

a

minimum wage violation, the total amount paid in a week divided
by the total hours worked in a week results in an average hourly
rate that falls below the minimum wage.

To the extent Plaintiff

argues that between August 8, 2010 and January 2011 he was not
paid for time spent inspecting his vehicle, his allegations are
insufficient to show that he was not paid the statutory minimum
wage for each of the total number of hours he worked.

See,

e.g., Avery, 748 F.Supp.2d at 502 (dismissing claim for wages
for

pre-trip

cleaning

inspections

where

plaintiffs

have

not

alleged that they were not paid the statutory minimum wage for
each of the total number of hours they worked).7

7

If Plaintiff

In his addendum to the complaint, Plaintiff asserts that
“Defendant also deducted wages from my pay by deducting the
value of passenger fares, tokens and farecards[] in actual
dollar amounts from my salary.” (ECF No. 6, at 3). A deduction
of wages is only impermissible if the deduction reduces total
wages per hour below the statutory minimum wage. See Mullins v.
13

were to include (and expand upon) the factual detail asserted in
his opposition papers in an amended complaint, he may be able to
state a viable minimum wage claim under the FLSA.

Accordingly,

Plaintiff will be permitted to file an amended complaint within
twenty-one (21) days to include factual support for the claim
that his average hourly wage fell below the applicable minimum
wage when he was required to work “off-the-clock.”
FLSA

minimum

wage

violation,

Plaintiff

must

To assert an

identify

in

the

amended complaint the number of hours worked in a work week and
the

remuneration

given

by

Defendant

for

that

week.

Specifically, Plaintiff’s amended complaint must indicate the
number of hours worked in each work week and exactly how much
Defendant paid him in each work week, limited to the time period
between August 8, 2010 and his termination in January 2011.
Plaintiff will not, however, be permitted to assert new claims
or allege facts outside the scope of the overtime or minimum
wage claims he attempted to raise initially.

See White v. Home

Depot,

13-0624,

U.S.A.,

Inc.,

Civil

Action

No.

DKC

2013

WL

4501328 (D.Md. Aug. 21, 2013) (allowing pro se plaintiff leave
to amend to expand upon new factual assertions raised in the
opposition).

Howard County, 730 F.Supp. 667, 673 (D.Md. 1990). Plaintiff has
not alleged that any deductions caused his wages to fall below
the statutory minimum, thus this is not a viable claim.
14

C.

Health and Safety Violations

In the opposition, Plaintiff also asserts violations of the
FLSA and Section 8(a)(5) of the NLRA because Defendant “wilfully
ignored Plaintiff’s requests for adequate rest between shifts,”
required Plaintiff to work on less than four hours of sleep,
and, on December 17, 2010, subjected Plaintiff to “unimaginable
situations while working” when a passenger he was transporting
“defecated on himself and began spreading feces on the window
and seat.”

(ECF No. 10, at 2, 5-7).

Plaintiff also alleges

that on October 28, 2010, he responded to Defendant’s “notice of
delayed

trips”

by

explaining

the

work-related

factors

that

contributed to his delay in pushing the start button on his GPS
monitoring device.

(Id. at 6).

Inadequate time to prepare for

bed, lack of sleep, and travel to work are not actionable under
the FLSA or Section 8(a)(5) of the NLRA.8

Similarly, neither the

FLSA nor the NLRA provides a cause of action for temporary,
unsanitary
action

for

working
receipt

conditions;
of

a

neither

“notice

of

provides
delayed

a

cause

trips,”

of

which

Plaintiff has failed to claim had any adverse impact on his
compensation or hours worked calculation.

See, e.g., Covington

v. Target Corp., Civil No. WDQ-12-3540, 2013 WL 5428702, at *5
8

Plaintiff contends that Defendant’s conduct violated NLRA
Section 8(a)(5), but the section he cites, 29 U.S.C. §
158(a)(5), addresses refusal to bargain collectively with the
representatives of employees and is inapplicable to Plaintiff’s
claims.
15

(D.Md. Sept. 25, 2013) (“The FLSA does not require an employer
to provide employees with rest periods or breaks.”).

Plaintiff

cannot rely on these allegations of health and safety violations
to support the FLSA and NLRA claims.
III. Conclusion
For the foregoing reasons, Defendant’s motion to dismiss
will be granted in part and denied in part.

Plaintiff will have

twenty-one (21) days to file an amended complaint in accordance
with the memorandum opinion.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

16