Tall v. MV Transportation
Filing
26
MEMORANDUM OPINION (c/m to Plaintiff 10/14/14 sat). Signed by Judge Deborah K. Chasanow on 10/14/14. (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 the
amended
complaint
filed
by
Defendant
(“MV Transportation” or “Defendant”).
MV
Transportation,
(ECF No. 21).
Inc.
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 dismiss will be granted in part
and denied in part.
I.
Background
From September 2009 until January 6, 2011, Plaintiff was
employed by MV Transportation as a Paratransit Driver/Operator.1
He
was
terminated
on
January
6,
2011.
On
August
8,
2013,
Plaintiff, proceeding pro se, brought a complaint against MV
Transportation for unpaid wages and overtime under the FLSA, 29
1
The allegations contained in Plaintiff’s initial complaint
are set forth in the June 30, 2014 memorandum opinion. (ECF No.
18).
U.S.C. § 201 et seq.
(ECF No. 1).
the complaint on October 10, 2013.
Defendant moved to dismiss
(ECF No. 8).
On October 17,
2013, Plaintiff moved to strike Defendant’s motion to dismiss,
which was construed as his opposition.
(ECF No. 10).
On June
30, 2014, the undersigned issued a memorandum opinion and order
granting in part Defendant’s motion to dismiss, finding most of
Plaintiff’s
allegations
time-barred,
but
granting
Plaintiff
twenty-one (21) days to amend his complaint in order to state a
claim within the confines of the statute of limitations.
(ECF
No. 18).
Plaintiff
(ECF No. 20).
filed
an
complaint
on
July
15,
2014.
Defendant moved to dismiss the amended complaint
on August 1, 2014.
(ECF No. 21).
and Defendant replied.
II.
amended
Plaintiff opposed the motion
(ECF Nos. 23 & 24).
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Charlottesville,
464
F.3d
480,
483
(4th
Presley v. City of
Cir.
2006).
A
plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).
Fed.R.Civ.P.
“Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 554, 556 n.3 (2007).
2
Bell Atl. Corp.
That showing must
consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light
most
favorable
to
the
plaintiff,
see
Harrison
v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th
Cir.
1993)).
In
evaluating
the
legal allegations need not be accepted.
complaint,
unsupported
Revene v. Charles Cnty.
Com’rs, 882 F.2d 870, 873 (4th Cir. 1989).
Legal conclusions
couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, 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
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Francis
v.
“[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 not ‘show[n] . . . that the pleader is entitled to
relief.’”
8(a)(2)).
Iqbal,
556
U.S.
at
679
(quoting
Fed.R.Civ.P.
Thus, “[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
3
that
requires
the
reviewing
experience and common sense.”
court
to
draw
on
its
judicial
Id.
III. Analysis
A.
Statute of Limitations
In Plaintiff’s initial complaint, he attempted to allege
FLSA violations dating back to September 2009.
(ECF No. 1).
In
the original motion to dismiss, Defendant argued that the twoyear statute of limitations applied, barring all of Plaintiff’s
claims.
Plaintiff
argued
that
the
three-year
statute
of
limitations applied because he pled willful violations of the
FLSA.
In the June 30, 2014 memorandum opinion, the undersigned
concluded
that
“[even]
[i]f
the
three-year
statute
of
limitations applies, [] many of Plaintiff’s claims are still
precluded. . . .
To support his FLSA claims, Plaintiff can only
rely on allegations from August 8, 2010 to January 6, 2011, the
date he was terminated.”
In
the
amended
(ECF No. 18, at 8).
complaint,
Plaintiff
“requests
that
the
court consider applying the Lily Ledbetter Fair Pay Act of 2009
which would allow the complaint to be effective retroactively to
the date of the first paycheck.”
which
amended
Title
VII,
(ECF No. 20, at 1).
covers
employees
This Act,
who
face
discrimination in compensation because of race, color, religion,
sex, or national origin.
42 U.S.C. § 2000e–5(e)(3)(A).
Nowhere
in his original or amended complaint, however, did Plaintiff
4
allege
that
Defendant
discriminated
against
employment based on his protected status.
him
in
his
Plaintiff’s request
is devoid of any explanation as to why the Act is applicable in
his case.
Instead, Plaintiff requests that the Act be applied
simply to expand the time period for which he can attempt to
seek
recovery
under
the
FLSA.
Furthermore,
Plaintiff
was
granted leave to amend on the limited issues outlined in the
June 30, 2014 memorandum opinion, and Plaintiff may not ignore
these boundaries in an attempt potentially to plead additional
claims outside of his overtime and minimum wage claims.
Tall v.
MV Transportation, Civ. Action No. DKC 12-2306, 2014 WL 2964279,
at *5 (D.Md. June 30, 2014) (“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.”).
B.
Overtime Claim
Defendant argues that Plaintiff’s amended complaint fails
to cure the deficiencies in the original complaint and should be
dismissed.
(ECF No. 21-1, at 2).
In support of the overtime
claim, Plaintiff originally asserted that he worked over forty
hours a week but was not compensated one and a half times his
regular rate of pay.
performed
tasks
compensated.
(ECF No. 10, at 9).
“off-the-clock”
(ECF No. 1, at 2).
5
for
He stated that he
which
he
was
not
In the initial motion to
dismiss, Defendant argued that Plaintiff provided “absolutely no
facts
regarding
when
this
denial
of
overtime
purportedly
occurred [] or the approximate[] number of hours of overtime he
was
allegedly
denied.”
(ECF
No.
8-1,
at
5-6).
Plaintiff
submitted with his opposition to Defendant’s initial motion to
dismiss payroll records reflecting that from August 2010 until
January 2011, he worked over forty hours on some weeks.
not
clear,
however,
whether
he
was
compensated
It was
for
the
additional hours, or which weeks Plaintiff was allegedly denied
overtime payment.
The June 30, 2014 memorandum opinion and
order identified information that Plaintiff must allege in the
amended
overtime
complaint
claim
to
under
determine
the
whether
FLSA.
Plaintiff
(ECF
Nos.
stated
18
&
an
19).
Specifically, Plaintiff was required:
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 that he claims Defendant owed him
overtime.
(ECF No. 18, at 11).
Plaintiff has included as exhibits to his two-page amended
complaint copies of paycheck stubs, which detail pay rate, hours
worked, and net pay.
(See ECF No. 20-3).
Additionally, the
amended complaint contains a spreadsheet - presumably created by
Plaintiff - detailing the weeks when Plaintiff allegedly worked
6
overtime hours for which he was not compensated.
20-1).
Section
207
requires
employers
to
(See ECF No.
compensate
their
employees “at a rate not less than one and one-half 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
requirements of the FLSA.’”
to
him
did
not
satisfy
the
Avery v. Chariots For Hire, 748
F.Supp.2d 492, 496 (D.Md. Sept. 16, 2010) (quoting Caro-Galvan
v.
Curtis
Richardson,
Inc.,
993
F.2d
1500,
(11th
1513
Cir.
in
which
1993)).
Defendant
argues
that
for
almost
every
week
Plaintiff alleges he worked overtime hours during the applicable
time
period,
the
paycheck
stubs
that
Plaintiff
submits
as
exhibits reflect that he was, in fact, paid one and a half times
his regular rate of pay.
(See ECF No. 20-3).
Out of the
eighteen (18) weeks within the statute of limitations, fourteen
(14) of those weeks have paycheck stubs showing that Plaintiff
was
compensated
Defendant
points
Plaintiff’s
for
out,
overtime
by
spreadsheet,
hours.
way
of
from
2
(See
example,
September
ECF
that
4,
No.
20-3).2
according
2010
to
through
Plaintiff submits that he was not paid overtime during the
week of July 29, 2010 to August 6, 2010. (See ECF No. 20-1, at
2).
For the reasons explained in the original memorandum
opinion, events preceding August 8, 2010 are time-barred.
7
September 18, 2010, he worked 85 hours, but was denied five
hours
of
periods
overtime.
reflect
The
that
he
paystubs
was
relies
spreadsheet
–
contradict
Plaintiff’s
which
was
he
allegations
however.
and
on
others
not
8.23
to
example
show
spreadsheet
that
in
those
pay
worked
hours
from
the
in
Defendant
Plaintiff’s
Plaintiff’s
paycheck
identifying
compensated.
contained
for
(ECF No. 20-3, at 8).
this
-
submits
for
paid
overtime during this time frame.
Defendant
he
stubs
overtime
for
overlooks
the
original
complaint,
The crux of Plaintiff’s overtime claim is that he was
required to perform certain assignments “off-the-clock” which
were not considered “work” by MV Transportation and for which he
was not compensated, including having to meet with supervisors,
complete
operating.
route
paperwork,
and
(See ECF No. 1).
inspect
the
vehicle
he
was
The fact that the paystubs reflect
that Plaintiff was paid overtime during some weeks does not
contradict
his
allegations
that
he
spent
additional
time
working, but that work was performed “off-the-clock” and did not
count toward his compensation.
Transportation
compensated
In other words, although MV
Plaintiff
for
some
overtime
hours
worked, the complaint alleges that he worked additional hours
which were counted “off-the-clock.”
has
provided
complies
with
the
The spreadsheet Plaintiff
instruction
in
the
prior
memorandum opinion requiring him to indicate the number of hours
8
worked
during
the
relevant
weeks
for
which
he
was
not
compensated.
Accordingly, the overtime claim will not be dismissed.
C.
As
Minimum Wage Claim
for
the
minimum
wage
claim,
Defendant
contends
that
Plaintiff’s amended complaint alleging minimum wage violations
fails to state a claim because his average hourly wage never
fell below the statutory minimum wage.
(ECF No. 21-1, at 8).
As explained in the prior memorandum opinion, 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).
Thus, the relevant analysis is whether the
average wage per hour of work completed falls below the minimum
wage.
Id.
Plaintiff was instructed to:
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.
Tall, 2014 WL 2964279, at *5.
In other words, Plaintiff was
granted to leave to amend in order to demonstrate that for each
9
week between August 8, 2010 and January 2011, when he alleged 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.
In the amended complaint, Plaintiff again alleges that he
performed work during certain hours of the day for which he was
not compensated.
(ECF No. 20, at 2).
The FLSA, however, “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.”
Avery,
748
F.Supp.2d
at
501.
Plaintiff’s
amended complaint contains a spreadsheet detailing Plaintiff’s
hours
worked
during
compensated.3
each
Defendant
week
argues
and
the
that
net
the
amount
FLSA
actually
minimum
wage
“calculation can be repeated using every p[ay] period identified
on Plaintiff’s spreadsheet and not a single one demonstrates
that his average weekly wage ever fell below the federal minimum
wage.”
(ECF
No.
21-1,
at
8)
Defendant’s contention is accurate.
(emphasis
in
original).
In calculating the amount
of compensation he received weekly, Plaintiff appears to use the
net
pay.
however,
In
the
properly
relevant
calculating
figure
3
to
the
use
average
is
the
hourly
wage,
total
gross
Plaintiff
provides
additional
information
in
the
spreadsheet, but the only relevant factors to the minimum wage
analysis are the number of hours worked and the total
compensation paid in a given week. (See ECF No. 20-1).
10
compensation, not the net pay.
believes
he
was
denied
For each week that Plaintiff
minimum
wage,
the
total
gross
compensation Plaintiff received divided by the total number of
hours worked, even including those he asserts were “off-theclock,” actually exceeds the minimum wage.4
Accordingly, the
minimum wage claim will be dismissed.5
IV.
Conclusion
For the foregoing reasons, Defendant’s motion to dismiss
will be granted in part and denied in part.
A separate order
will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
4
The $7.25 per hour rate applies to Plaintiff’s claims.
5
Plaintiff also insists in his opposition to the instant
motion to dismiss that [D]efendant [i]s knowingly continuing to
withhold $150 from his pay for a speeding camera ticket that was
dismissed.
. . .
To this date, [] [D]efendant still has not
reimbursed Plaintiff.” (ECF No. 23, at 3). As Defendant points
out, however, unless Plaintiff can demonstrate that this alleged
deduction caused his average weekly wage to fall below the
federal minimum wage during the applicable pay period, this
allegation does not support his minimum wage claim.
(ECF No.
23, at 3). Plaintiff has not pled in his amended complaint that
Defendant’s alleged failure to reimburse him $150 caused his
average hourly rate to fall below minimum wage during the
applicable pay period.
11
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