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