Mitchell v. Federal Express Corporation
Filing
14
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/10/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DWIGHT D. MITCHELL, Individually:
and on behalf of other similarly
situated employees
:
v.
:
Civil Action No. DKC 16-3172
:
FEDERAL EXPRESS CORPORATION
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this labor
case is the motion to dismiss filed by Defendant Federal Express
Corporation (“Defendant”).
(ECF No. 7).
The issues have been
fully briefed, and the court now rules, no hearing being deemed
necessary.
Local Rule 105.6.
For the following reasons, the
motion to dismiss will be denied.
I.
Background1
Defendant is an international corporation in the package
courier industry.
(ECF No. 1 ¶ 2).
Defendant hired Plaintiff
Dwight Mitchell (“Plaintiff”) as a Security Specialist in 2006
and promoted him to Senior Security Specialist in November 2008.
(Id.
¶
20).
“primarily
As
entailed
a
Security
investigating
Specialist,
and
Plaintiff’s
implementing
job
corrective
action plans regarding workplace violence and theft, as well as
1
Unless otherwise noted, the facts outlined here are set
forth in the complaint and construed in the light most favorable
to Plaintiff.
investigating
vandalism,
and
attempting
misconduct,
to
security
resolve
policy
pilferages,
violations
acts
of
other
(Id. ¶ 24).
activities detrimental to the FedEx brand.”
and
When
Plaintiff became a Senior Security Specialist, in addition to
the
duties
handling
associated
customer
deliveries.
with
complaints
(Id. ¶ 25).
his
normal
Security
and
Specialist,
investigating
he
problems
began
with
For performing this work, Plaintiff
receives an annual salary.
Outside
a
(Id. ¶¶ 38-41).
work
schedule,
on
weekends
and
on
weekdays after his shift, Plaintiff is “on-call” for security
and safety issues.
(Id. ¶ 45).
While on-call, Plaintiff must
remain within certain geographical limits and is prohibited from
drinking alcohol, because he could be required to handle urgent
work issues as they arise.
(Id. ¶ 46).
On average, Plaintiff
receives between two and three calls per day after his shift has
ended, and each call can take anywhere from a few minutes to a
few
hours
to
resolve.
(Id.
¶
48).
Although
Plaintiff
consistently works fifty to sixty hours per week (id. at 49), he
does not receive any overtime wages for hours worked over forty
hours per week (id. ¶ 50).
whereby
employees
required
compensatory time off.
Defendant has an on-call policy
to
be
(Id. ¶ 51).
on-call
are
provided
with
Under this policy, on-call
employees can receive a lump sum payment for compensatory time
2
with the approval of a manager (id.), however, Plaintiff has
never received a payment for his on-call time (id. ¶ 53).
On September 16, 2016, Plaintiff filed the complaint on
behalf of himself and similarly situated employees to recover
unpaid
wages
for
overtime
work.
Plaintiff
alleges
that
Defendant’s failure to pay him overtime wages for hours worked
outside his normal schedule violated the overtime provisions in
the FLSA, 29 U.S.C. § 207(a) (Count I), and the Maryland Wage
and Hour Law (“MWHL”), Md.Code Ann., Lab. & Empl. §§ 3-415, 3420(a)
(Count
II),
which
require
that
employers
compensate
employees at one and one-half times their regular rate of pay
for each hour worked in excess of forty each week.
¶¶ 81, 86-87).
(ECF No. 1
Defendant moved to dismiss the complaint for
failure to state a claim (ECF No. 7) and filed a memorandum in
support (ECF No. 8) on December 9.
Plaintiff responded (ECF No.
12), and Defendant replied (ECF No. 13).
II.
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
A 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.”
Fed.R.Civ.P. 8(a)(2).
“Rule 8(a)(2)
still requires a ‘showing,’ rather than a blanket assertion, of
3
entitlement to relief.”
544, 555 n.3 (2007).
Bell Atl. Corp. v. Twombly, 550 U.S.
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) (citations omitted).
At
this
stage,
all
well-pleaded
allegations
in
the
complaint must be considered as true, Albright v. Oliver, 510
U.S.
266,
268
(1994),
and
all
factual
allegations
must
construed in the light most favorable to the plaintiff.
be
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
complaint,
unsupported legal allegations need not be accepted.
Revene v.
Charles Cty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
conclusions
couched
as
factual
allegations
are
Legal
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 Francis v. Giacomelli, 588 F.3d 186, 192 (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 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
4
plausible claim for relief will . . . be a context-specific task
that
requires
the
reviewing
experience and common sense.”
court
to
draw
on
its
judicial
Id.
The statutory exemptions to an FLSA claim are affirmative
defenses, and the employer bears the burden of establishing the
applicability of those exemptions.
In re Food Lion, Inc., No.
94-2360, 1998 WL 322682, at *4 & n.9 (4th Cir. June 4, 1998)
(unpublished table opinion); Clark v. J.M. Benson Co., 789 F.2d
282,
286
(4th
affirmative
Cir.
defense
burden of proof.
1986).
for
Federal
which
the
preemption
moving
party
is
also
carries
an
the
Peete-Bey v. Educ. Credit Mgmt. Corp., 131
F.Supp.3d 422, 429 (D.Md. 2015) (citing Bausch v. Stryker Corp.,
630 F.3d 546, 561 (7th Cir. 2010); Pinney v. Nokia, Inc., 402
F.3d 430, 446 (4th Cir. 2005)).
While affirmative defenses may
be reached by a motion to dismiss filed under Rule 12(b)(6),
such a motion should be granted only in the rare circumstances
where facts sufficient to rule on an affirmative defense clearly
appear on the face of the complaint.
Goodman v. PraxAir, Inc.,
494 F.3d 458, 464 (4th Cir. 2007) (en banc).
Moreover, a movant
cannot merely show that the elements of the defense appear on
the face of the complaint or in properly considered documents,
but must also “show that the plaintiff’s potential rejoinder to
the affirmative defense was foreclosed by the allegations in the
complaint.”
Id. at 466.
5
III. Analysis
A.
Plaintiff’s FLSA Claim
The
FLSA
specifically
exempts
from
its
maximum
hours
provisions “any employee of a carrier by air subject to the
provisions of title II of the Railway Labor Act.”
213(b)(3).
In
“majority”
the
of
maintaining
complaint,
his
the
work
safety
customers and assets.”
Plaintiff
revolved
and
alleges
around
security
that
the
“servicing
needs
(ECF No. 1 ¶ 24).
29 U.S.C. §
of
and
employees,
His work “primarily
entailed investigating and implementing corrective action plans
regarding workplace violence and theft, as well as investigating
and
attempting
misconduct,
to
resolve
security
policy
pilferages,
violations
detrimental to the FedEx brand.”
role
also
included
(Id.).
handling
acts
and
of
vandalism,
other
activities
He maintains that his
customer
investigating problems with deliveries.
complaints
(Id. ¶ 25).
and
In his
opposition to Defendant’s motion, Plaintiff argues that whether
these
duties
are
related
to
Defendant’s
transportation
activities is a question of fact that cannot be resolved on a
motion to dismiss.
Although
(ECF No. 12, at 12).
Defendant
has
pointed
to
other
cases
in
which
courts have found that it qualifies as an air carrier, it cannot
meet
the
high
affirmative
burden
defense
in
imposed
a
on
motion
6
a
defendant
relying
to
dismiss.
While
on
an
“[t]he
question whether their particular activities excluded them from
the overtime benefits of the FLSA is a question of law,” “[t]he
question of how [employees] spent their working time . . . is a
question of fact.”
Icicle Seafoods, Inc. v. Worthington, 475
U.S. 709, 714 (1986).
The applicability of the FLSA exemptions
“requires an individualized determination into the actual work
performed by that employee.”
Williams v. Md. Office Relocators,
485 F.Supp.2d 616, 619 (D.Md. 2007).
For good reasons, courts
have been hesitant to find that the RLA exemption applies on a
motion to dismiss.
See Barrera, 2013 WL 1217141, at *3; Horkan
v. Command Sec. Corp., 682 N.Y.S.2d 563, 564-65 (N.Y.Sup.Ct.
1998).
In Barrera, for example, a case in which the plaintiff
was a security guard in several U.S. Airways employee buildings,
the court denied the airline’s motion to dismiss because the
outcome would depend “on the full factual circumstances of when
and where Plaintiff performed [which] tasks.”
1217141, at *3.
Defendant’s
duties,
a
exemption
air
Without further development of the record as to
transportation
determination
is
Barrera, 2013 WL
as
premature.
business
to
and
Plaintiff’s
Accordingly,
Plaintiff’s
status
Defendant’s
under
job
the
motion
to
claim
is
dismiss will be denied as to Count I.
B.
Plaintiff’s MWHL Claim
Defendant
next
argues
that
Plaintiff’s
MWHL
preempted by federal law, specifically, the Airline Deregulation
7
Act (“ADA”), 49 U.S.C. § 41713.
from
“enact[ing]
or
enforc[ing]
The ADA prohibits any state
a
law,
regulation,
or
other
provision . . . related to a price, route, or service of an air
carrier.”
Id.
§
41713(b)(1).
In
interpreting
the
same
provision in the context of the deregulated trucking industry,
the Supreme Court of the United States has held:
“(1)
that
“[s]tate
enforcement
actions
having a connection with, or reference to,”
carrier “ ‘rates, routes, or services’ are
pre-empted,” 504 U.S., at 384 (emphasis
added); (2) that such pre-emption may occur
even if a state law’s effect on rates,
routes, or services “is only indirect,” id.,
at 386 (internal quotation marks omitted);
(3) that, in respect to pre-emption, it
makes no difference whether a state law is
“consistent” or “inconsistent” with federal
regulation,
id.,
at
386–387
(emphasis
deleted); and (4) that pre-emption occurs at
least where state laws have a “significant
impact” related to Congress’ deregulatory
and pre-emption-related objectives, id., at
390.
Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 370-71 (2008)
(citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378
(1992)).2
2
The statute at issue in Rowe was the preemption provision
of the Federal Aviation Administration Authorization Act of 1994
(“FAAAA”), which “copied the language of the air-carrier preemption provision of the Airline Deregulation Act of 1978” and
“did so fully aware of [the Supreme] Court’s interpretation of
that language.”
Rowe, 552 U.S. at 370.
Courts “ha[ve]
interpreted
the
shared
language
of
the
two
statutes
identically.” Costello v. BeavEx, Inc., 810 F.3d 1045, 1051 (7th
Cir. 2016) (citing Rowe, 552 U.S. at 370).
8
Defendant argues that “it is clear that Plaintiff’s duties,
as
stated
in
the
complaint,
are
encompassed
definition of ‘services’ provided by Fedex.”
14).
A
determination
of
how
the
MWHL’s
within
the
(ECF No. 13, at
wage
and
hour
requirements relate to or affect Defendant’s prices, routes, or
services also necessitates the development of a factual record.
More
information
is
required
as
to
the
how
Defendant
prices, selects routes, and provides its services.
sets
Accordingly,
Defendant’s motion to dismiss will be denied as to Count II.
IV.
Conclusion
For the foregoing reasons, the motion to dismiss filed by
Defendant
Federal
Express
Corporation
will
be
denied.
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
9
A
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