Mitchell v. Federal Express Corporation
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
Civil Action No. DKC 16-3172
FEDERAL EXPRESS CORPORATION
Presently pending and ready for resolution in this labor
case is the motion to dismiss filed by Defendant Federal Express
(ECF No. 7).
The issues have been
fully briefed, and the court now rules, no hearing being deemed
Local Rule 105.6.
For the following reasons, the
motion to dismiss will be denied.
Defendant is an international corporation in the package
(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.
action plans regarding workplace violence and theft, as well as
Unless otherwise noted, the facts outlined here are set
forth in the complaint and construed in the light most favorable
(Id. ¶ 24).
activities detrimental to the FedEx brand.”
Plaintiff became a Senior Security Specialist, in addition to
(Id. ¶ 25).
For performing this work, Plaintiff
receives an annual salary.
(Id. ¶¶ 38-41).
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
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).
compensatory time off.
Defendant has an on-call policy
(Id. ¶ 51).
Under this policy, on-call
employees can receive a lump sum payment for compensatory time
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
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)
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).
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).
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.”
still requires a ‘showing,’ rather than a blanket assertion, of
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
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
complaint must be considered as true, Albright v. Oliver, 510
construed in the light most favorable to the plaintiff.
Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783
(4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d
unsupported legal allegations need not be accepted.
Charles Cty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
Iqbal, 556 U.S. at 678, as are conclusory factual allegations
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
Thus, “[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
experience and common sense.”
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
burden of proof.
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
Id. at 466.
Plaintiff’s FLSA Claim
provisions “any employee of a carrier by air subject to the
provisions of title II of the Railway Labor Act.”
customers and assets.”
(ECF No. 1 ¶ 24).
29 U.S.C. §
His work “primarily
entailed investigating and implementing corrective action plans
regarding workplace violence and theft, as well as investigating
detrimental to the FedEx brand.”
He maintains that his
investigating problems with deliveries.
(Id. ¶ 25).
opposition to Defendant’s motion, Plaintiff argues that whether
activities is a question of fact that cannot be resolved on a
motion to dismiss.
(ECF No. 12, at 12).
courts have found that it qualifies as an air carrier, it cannot
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.
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.
Without further development of the record as to
Barrera, 2013 WL
dismiss will be denied as to Count I.
Plaintiff’s MWHL Claim
preempted by federal law, specifically, the Airline Deregulation
Act (“ADA”), 49 U.S.C. § 41713.
The ADA prohibits any state
provision . . . related to a price, route, or service of an air
provision in the context of the deregulated trucking industry,
the Supreme Court of the United States has held:
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
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
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
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
Rowe, 552 U.S. at 370.
identically.” Costello v. BeavEx, Inc., 810 F.3d 1045, 1051 (7th
Cir. 2016) (citing Rowe, 552 U.S. at 370).
Defendant argues that “it is clear that Plaintiff’s duties,
definition of ‘services’ provided by Fedex.”
(ECF No. 13, at
requirements relate to or affect Defendant’s prices, routes, or
services also necessitates the development of a factual record.
prices, selects routes, and provides its services.
Defendant’s motion to dismiss will be denied as to Count II.
For the foregoing reasons, the motion to dismiss filed by
separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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