Cavallaro et al v. UMass Memorial Health Care, Inc. et al
Filing
140
Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER. Defendants partial 117 motion to dismiss is GRANTED,defendants 117 motion to dismiss the collective action allegations is GRANTED as to those putative class members employed by defendants other than UMMMC and otherwise DENIED, and defendants 117 motion to stay proceedings is DENIED as moot.(Cicolini, Pietro)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
PATRICIA CAVALLARO, on behalf of )
herself and all other employees similarly )
situated,
)
)
Plaintiff,
)
)
v.
)
)
UMASS MEMORIAL HEALTH CARE, )
INC., et al.,
)
)
Defendants.
)
)
Civil Action No.
09-40152-FDS
MEMORANDUM AND ORDER ON PARTIAL MOTION TO DISMISS
SAYLOR, J.
This is an employment dispute about compensation for extra time worked. Plaintiff
Patricia Cavallaro, on behalf of herself and all other employees similarly situated, brought suit
against various related hospitals and health-care providers and two healthcare executives. She
contends that defendants employ a variety of policies to deny employees compensation for time
worked during meal breaks and before and after shifts. The complaint seeks relief under the Fair
Labor Standards Act (“FLSA”). 29 U.S.C. § 201 et seq.
Pending before the Court are defendants’ motions to dismiss all claims against all
defendants except UMass Memorial Medical Center, Inc. and to dismiss or strike collective
action allegations.1
1
In a letter dated August 13, 2012, and submitted to the Court as Exhibit A to plaintiff’s opposition brief,
plaintiff agreed to withdraw her request for injunctive relief. The Court will accordingly treat the request as
withdrawn. Defendants also moved to stay discovery proceedings pending the Court’s ruling on the partial motion
to dismiss. That motion will be denied as moot.
I.
Background
A.
Factual Background
Unless otherwise indicated, all facts are stated as set forth in the complaint.
Plaintiff Patricia Cavallaro worked at UMass Memorial Medical Center in Worcester,
Massachusetts, as an hourly employee from August 2002 until December 2008. (Compl. ¶¶ 10,
101). During that time, she was employed as a registered nurse in the Cardiac Telemetry Unit.
(Compl. ¶ 101). She received her paychecks from UMass Memorial Medical Center. (Id.).
Cavallaro purports to represent a class of some 13,000 similarly situated individuals who
were not paid by defendants for all the hours they worked. (Compl. ¶¶ 5-6). According to the
complaint, this class includes the following hourly employees:
secretaries, housekeepers, custodians, clerks, porters, registered nurses, licensed
practical nurses, transport nurses, nurse aides, administrative assistants,
anesthetists, clinicians, medical coders, medical underwriters, nurse case
managers, nurse interns, nurse practitioners, nurse aides, practice supervisors,
professional staff nurses, quality coordinators, resource pool nurses, respiratory
therapists, senior research associates, operating room coordinators, surgical
specialists, admissions officers, student nurse techs, trainers, transcriptionists,
occupational therapists, occupational therapy assistants, physical therapists,
physical therapy assistants, radiation therapists, staff therapists,
angiotechnologists, x-ray technicians, CAT scan technicians, mammographers,
MRI technologists, sleep technologists, surgical technologists, radiographers,
phlebotomists, respiratory technicians, respiratory care specialists, respiratory
care practitioners, clinical coordinators, medical assistants, home care nurses,
home health aides, clinical case managers, midwives and other health care
workers.
(Compl. ¶ 131).
The complaint alleges that Cavallaro worked time in addition to her scheduled shifts for
which she did not receive compensation. For example, Cavallaro performed her regular duties
during her meal breaks, without compensation. (Compl. ¶ 101). These duties included charting,
2
responding to codes, answering questions from nurses or physicians, and attending in-service
trainings. (Id.). She also worked for approximately 15-30 minutes before each shift, and
approximately 30-45 minutes after each shift, without compensation. (Id.). Her tasks during that
time included reading and creating charts and reports, as well as preparing and distributing
medication. (Id.).
Defendants UMass Memorial Health Care, Inc.; UMass Memorial Hospitals, Inc.; UMass
Memorial Medical Center, Inc.; HealthAlliance Hospitals, Inc.; Marlborough Hospital; Clinton
Hospital Association; and Wing Memorial Hospital Association are hospitals and health-care
providers. According to Cavallaro, they are related organizations with common membership,
governing bodies, trustees, officers, and benefit plans. (Compl. ¶ 10).
The complaint alleges a number of ways in which defendants operate as a cohesive
system. The hospitals represent themselves in publications as an integrated health care system.
(Compl. ¶ 20). They have centralized financial, payroll, and health records systems (Compl. ¶
24); use a centralized website for job postings (Compl. ¶ 25); and maintain system-wide
employee-benefit plans and human-resources policies (Compl. ¶ 28). In addition, the complaint
alleges that a single Board of Trustees oversees the entire system. (Compl. ¶ 30).
According to the complaint, UMass Memorial Health Care, Inc. (“UMMHC”) is the
“parent” company of all other corporate defendants. (Compl. ¶ 27). UMMHC’s Form 990 form
indicates that the company owns hospital facilities including UMass Memorial Medical Center,
Inc.; HealthAlliance Hospital; Marlborough Hospital; Clinton Hospital Association; and Wing
Memorial Hospital Corporation. (Compl. ¶ 32).
Defendants John O’Brien and Patricia Webb are executive officers employed by one or
3
more of the defendants. According to the complaint, O’Brien is the President and CEO of
“UMass,” a term it defines as describing all corporate defendants collectively. (Compl. ¶ 40). It
further alleges that O’Brien has operational control over an integrated health-care system,
including all defendants, and makes decisions that concern the policies (including humanresources policies) that the different hospitals adopt and implement. (Compl. ¶¶ 41, 44). It
alleges that he has authority to oversee employment decisions, including hiring and firing, and to
make decisions concerning employees’ schedules, standard benefit levels, and maintenance of
payroll-record systems. (Compl. ¶¶ 52, 56, 64-66).
According to the complaint, defendant Patricia Webb was an executive officer who was
employed by one or more of the defendants until 2010. It alleges that Webb was the Senior Vice
President and Chief Human Resources Officer of “UMass,” again defined as describing all
corporate defendants collectively. (Compl. ¶ 74). It further alleges that she was responsible for
and authorized to direct all aspects of human-resources functions for all defendants. (Compl. ¶
75). It alleges that she counseled defendants on employment decisions, including hiring and
firing; helped set employees’ schedules, hours, and standard benefit levels; was actively involved
in drafting human-resources policies and overseeing compliance with those policies and with
federal law; and had the authority to hire and fire employees. (Compl. ¶¶ 80, 81, 83, 86, 94).
The complaint alleges that defendants violated various statutory duties by failing to
compensate Cavallaro and those similarly situated for all time worked. It alleges two unlawful
practices: (1) automatically deducting time from each employee’s paycheck for meal breaks,
even if the employee did not actually receive such a break, and (2) failing to compensate
employees for work completed before and after their shifts.
4
B.
Procedural Background
Plaintiff (along with a second named plaintiff, Monique Herman) filed the original
complaint on September 3, 2009, alleging causes of action under ERISA, RICO, and the FLSA.
In July 2010, the Court granted defendants’ motion to dismiss the RICO claim. Plaintiffs’
second amended complaint was filed in January 2011. In June 2011, the Court granted
defendants’ motion for judgment on the pleadings on the ground that the plaintiffs had failed to
allege an actual employment relationship with any of the named defendants. Cavallaro v.
UMass Mem. Health Care Inc., 2011 U.S. Dist. LEXIS 61003 (D. Mass. June 8, 2011).
Plaintiffs appealed; the First Circuit reversed and remanded the case to allow for “one last
amendment.” Cavallaro v. UMass Mem. Healthcare, Inc., 678 F.3d 1, 10 (1st Cir. 2012).
On July 7, 2012, plaintiff Cavallaro filed a third amended complaint, focused solely on
defendants’ alleged FLSA violations.2 The complaint includes collective-action allegations.
Defendants have moved to dismiss claims against all defendants except UMass Memorial
Medical Center on the grounds that the complaint fails to plead employer status, standing, or any
claims on behalf of the putative class members.
II.
Standard of Review
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court “must
assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable
inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007)
(citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the
complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S.
2
Monique Herman, the other named plaintiff in the original complaint, is no longer named in the third
amended complaint.
5
544, 570 (2007). That is, “[f]actual allegations must be enough to raise a right to relief above the
speculative level, . . . on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 555 (citations omitted). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556).
Dismissal is appropriate if plaintiff’s well-pleaded facts do not “possess enough heft to show that
plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 84 (1st Cir.
2008) (quotations and original alterations omitted).
A motion to strike collective action allegations is also analyzed under the 12(b)(6)
standard. See Manning v. Boston Med. Ctr. Corp., 2012 U.S. Dist. LEXIS 54692 at *4 (D. Mass.
Apr. 18, 2012); Bessette v. Avco Financial Services, Inc., 279 B.R. 442, 450 (D. R.I. 2002).
III.
Analysis
A.
Standing
Standing is a threshold question in every case; “[i]f a party lacks standing to bring a
matter before the court, the court lacks jurisdiction to decide the merits of the underlying case.”
United States v. AVX Corp., 962 F.2d 108, 113 (1st Cir. 1992). To satisfy the case-orcontroversy requirement of Article III of the United States Constitution, plaintiff bears the
burden of alleging facts sufficient to establish that she (1) has suffered an “injury-in-fact,” (2)
that the injury is “‘fairly traceable’ to the actions of the defendant,” and (3) that the injury will
likely be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 162 (1997) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Inclusion of class allegations does
not relieve a plaintiff of the requirement that she allege that she personally has suffered an
6
injury, fairly traceable to the challenged action of the defendants. See Warth v. Seldin, 422 U.S.
490, 502 (1975).
By alleging that she worked time for which she did not receive compensation, plaintiff
clearly sets forth a sufficient injury-in-fact to satisfy the first requirement. However, it is less
obvious that plaintiff has satisfied the second and third elements—traceability and
redressability—as to all nine defendants. It is uncontested that liability in the context of the
FLSA is predicated on the existence of an employer-employee relationship. Accordingly,
plaintiff’s injuries are only traceable to, and redressable by, those defendants who are deemed by
law to have employed her.
Plaintiff does not allege that she was directly employed by any defendant other than
UMMMC. Rather, she alleges that the seven corporate defendants are engaged in the operation
of a health-care system as a single, integrated enterprise. She asserts that, as such, they
constitute a “joint employer” as that term is understood under the FLSA, and are therefore jointly
and severally liable for violations of the FLSA.
Defendants contend that plaintiff’s allegations of an integrated “enterprise” is insufficient
to support standing as to the defendants other than UMMMC. Even accepting the allegations as
true, defendants argue that the existence of a “common enterprise” is irrelevant to the question of
liability under the FLSA, and therefore cannot provide a basis for standing. They point to a
district court case in which the court found allegations of defendants’ involvement in a “common
enterprise” to be unrelated to the existence of an employer-employee relationship, and therefore
insufficient to create standing to sue under the FLSA. See Martin v. BMS Enterprises, 2010 U.S.
Dist. LEXIS 66050, at *15 n.8 (N.D. Tex. July 1, 2010) (“Although the Blackmon Mooring
7
defendants may be part of a common enterprise with plaintiffs’ employer or employers, FLSA
liability is predicated only on an employee-employer relationship, not on defendants’
involvement in a common enterprise.”).
Plaintiff’s argument here is distinguishable from that made by the plaintiffs in Martin.
There, plaintiffs argued that they had standing simply because the named defendants constituted
a single enterprise, without alleging any connection between the enterprise and defendants’
status as an employer. Here, plaintiff does not suggest that the existence of a single enterprise is,
by itself, sufficient. Rather, plaintiff asserts that defendants collectively constitute a “joint
employer” for the purposes of the FLSA, which therefore makes them her employers as that term
is understood in the FLSA context.
If plaintiff is correct, then she was “employed” by all defendants for the purposes of the
FLSA, and has sufficiently alleged an injury, traceable to defendants, that would be redressed by
a favorable decision. Thus, the question of plaintiff’s standing turns on whether she has
sufficiently alleged that she was “employed” by defendants, as that concept is interpreted in the
context of the FLSA.
B.
Employer Status of Corporate Defendants
The FLSA provides broad and comprehensive coverage of employees. United States v.
Rosenwasser, 323 U.S. 360, 362 (1945). Indeed, the Supreme Court has indicated that “[a]
broader or more comprehensive coverage of employees . . . would be difficult to frame.” Id.
However, the statute’s reach is not without limits. The FLSA applies only to those persons who
are “employed” by an “employer.” 29 U.S.C. §207(a)(1). To “employ” is defined as “to suffer
or permit to work.” 29 U.S.C. §203(g). An “employer” is defined as “any person acting directly
8
or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. §203(d).
Liability under the FLSA is thus predicated upon the existence of an employer-employee
relationship. However, there may be multiple “employers” of one employee, all of whom are
simultaneously liable for compliance. Chao v. Hotel Oasis, Inc., 493 F.3d 26, 34 (1st Cir. 2007).
In determining whether an employment relationship exists for the purposes of the FLSA,
courts look “not to common law conceptions of that relationship, but rather to the economic
reality of the totality of the circumstances bearing on whether a putative employee is
economically dependent on their alleged employer.” Baystate Alt. Staffing, Inc. v. Herman, 163
F.3d 668, 675 (1st Cir. 1998) (internal quotations omitted). The First Circuit has set forth four
factors that are relevant to this analysis: whether the alleged employer (1) had the power to hire
and fire the employees, (2) supervised and controlled employee work schedules or conditions of
employment, (3) determined the rate and method of payment, and (4) maintained employment
records. Id. (citing Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th
Cir. 1983)).
Plaintiff contends that the rigid use of these factors in evaluating the existence of an
employer-employee relationship is inappropriate. According to plaintiff, the factual
circumstances in Baystate lent themselves to the application of the factors cited by the court, but
those factors are poorly suited to evaluate the existence of an employer-employee relationship in
all cases, and here in particular. She urges the court to focus on the totality of the circumstances,
rather than a mechanical application of the Baystate factors, and proposes an additional list of
factors for the court to consider: (1) whether the employers are “completely disassociated” with
respect to the employment of the individuals; (2) whether one employer is controlled by another
9
or the employers are under common control or management; (3) whether the employers maintain
interrelation between operations; (4) whether there is centralized control over labor relations
among the employers; (5) whether there is common ownership among the employers; (6)
whether the employers share common insurance, pension, or payroll systems; and (7) whether
the employers share common hiring, seniority, recordkeeping, or billing systems. (Pl. Opp. Br.
at 9).
Plaintiff cites to a number of authorities in support of this proposition. However, none of
those references provide a persuasive reason for diverging from the First Circuit’s analysis in
Baystate. Two of the authorities cited by plaintiff address the factual situation, not pleaded here,
where a single employee has provided work for two or more related employers during the same
workweek. See 29 C.F.R. § 791.2 (addressing the separate employment by two or more
employers of one employee); U.S. Dep’t of Labor, Wage & Hour Div., Opinion No. FLSA200517NA, 2005 WL 6219105 (June 14, 2005) (analyzing the question of joint employment in a
factual circumstance in which an employee, during the same workweek, worked for two separate
facilities operated under the same business name and managed by the same company). Neither
authority stands for the proposition that any two companies that are not completely disassociated
are, by definition, jointly and severally liable for any FLSA violations concerning any employee.
Nor do they suggest that the factors they set forth are equally applicable in a factual
circumstance like that presented here, where there is no allegation that the plaintiff was ever
employed at more than one facility.
Plaintiff’s argument also muddles the proper method for analyzing multiple-company
liability as joint employers with the separate question of whether they may constitute a single
10
enterprise for FLSA coverage. Plaintiff cites to a Ninth Circuit case, Chao v. A-One Medical
Servs., 346 F.3d 908 (9th Cir. 2003), and a Supreme Court case, Radio and Television Broadcast
Technicians Local Union 1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256 (1965), as
supporting the use of these factors to determine the liability of multiple employers under the
FLSA. But that reliance is misplaced. Both cases focused on whether two entities constitute a
“single enterprise” for jurisdictional coverage, not the liability of those employers for FLSA
violations. Indeed, the court in A-One Medical specifically acknowledged that the jurisdictional
question of coverage is separate and distinct from the question of liability as joint employers.
346 F.3d at 917; see also Cornell v. CF Ctr., LLC, 410 Fed. Appx. 265, 267 (11th Cir. 2011)
(“The finding of an enterprise is relevant only to the issue of coverage. Liability is based on the
existence of an employer-employee relationship.”).
Finally, plaintiff cites to a Second Circuit case, Clinton’s Ditch Cooperative Co. v.
National Labor Relations Bd., 778 F.2d 132 (2nd Cir. 1985). That opinion contains an extensive
discussion of the difference between a “single enterprise” situation and a “joint employer”
relationship, as well as the variety of tests adopted by circuit courts in making that
determination. Ultimately, the court set forth five factors that it weighed in reaching its
conclusion that joint employer status was absent: (1) who played a role in hiring and firing; (2)
who administered discipline to employees; (3) who maintained records and handled pay,
insurance, benefits, and records; (4) who conducted day-to-day supervision; and (5) who
participated in the collective bargaining process. By this Court’s reading, these factors have far
more in common with the First Circuit’s Baystate analysis than they do with plaintiff’s proposed
factors.
11
In short, plaintiff has provided no valid basis for finding that the Baystate analysis is
inappropriate here. Accordingly, the Court will apply test for joint employer status as set forth in
the First Circuit’s opinion in Baystate.
1.
Power to Hire and Fire
The first Baystate factor is whether the alleged employer had the authority to hire and fire
workers. In Baystate, it was undisputed that the company was solely responsible for hiring and
firing certain workers, and had the power to keep workers off the job site if the company was not
satisfied with their performance. 163 F.3d at 675-76.
Here, the amended complaint makes no specific allegations that any corporate defendant
other than UMMMC had the power to hire or fire her. She was employed from 2002 until 2008
as a nurse at UMMMC. (Compl. ¶ 101). She received all paychecks from UMMMC. (Id.). The
complaint does not allege that any other corporate defendant was involved in hiring her. Nor
does it allege that any of the other alleged employers had the authority to fire her. Accordingly,
the complaint pleads no facts relevant to the first Baystate factor as to any defendant other than
UMMMC.
2.
Supervision and Control of Employee Work Schedules and
Conditions of Employment
The second Baystate factor is whether the alleged employer exercised control over work
schedules and conditions of employment. The Baystate court noted many different ways in
which the alleged employer supervised and controlled employees: it “dictated the times at which
workers were to report . . . ; screened workers for minimum qualifications; decided which
workers would be assigned to particular job sites; sometimes transported workers to job sites at
client companies; instructed workers about appropriate dress and work habits; and forbade
12
workers from contacting directly a client company about potential job opportunities.” Baystate,
163 F.3d at 676.
Here, the complaint does not make any specific allegations that any corporate defendants
other than UMMMC supervised plaintiff or exercised control over her schedule or the conditions
of her employment. The complaint does make a general allegation that “[d]efendants jointly
managed and controlled this venture as well as its employees and assets.” (Compl. ¶ 36). It also
alleges that UMMHC is the “parent” company to UMMMC. (Id.). Although these assertions
implicate the corporations’ control over UMMMC employees, such conclusory statements are
insufficient to suggest that any other corporate employer actually exercised authority over
plaintiff’s work. Again, the complaint pleads no facts relevant to the second Baystate factor as
to any defendant other than UMMMC.
3.
Determination of the Rate and Method of Payment
The third Baystate factor is the degree of control the putative employer exercised over the
economic aspects of plaintiff’s employment. The Baystate court noted that the putative
employer determined the worker’s hourly wages, chose a method of payment, collected time
sheets, and issued worker’s paychecks. 163 F.3d at 676.
The complaint here arguably sets forth plausible allegations concerning UMMHC’s
control over the economic aspects of plaintiff’s employment relationship. In particular, the
complaint alleges that UMMHC is a “parent” company to all other corporate defendants; that the
corporate defendants’ labor relations and human resources are centrally controlled; that this
centralized control extends to system-wide policies and employee-benefit plans; and that each
component entity implements the policies as a result of this centralized control (Compl. ¶¶ 27,
13
28, 33, 34). At this stage of the proceedings, these allegations would support a reasonable
inference that UMMHC was at least partly responsible for determining how, and how much,
plaintiff was paid.
The complaint does not, however, set forth any similarly plausible specific allegations as
to the remaining five corporate defendants. There is no allegation that any of the other entities
exercised authority in setting the system’s alleged uniform policies. There is no allegation that
any of these entities determined how plaintiff would be paid, how much she would be paid, or
whether she would receive overtime compensation. There is no allegation that any of these
entities participated in setting benefit levels or distributing benefits to her. Absent such
allegations, the mere assertion that the corporations followed uniform policies is not sufficient to
support any reasonable inference that they exercised control over her compensation.
4.
Maintenance of Employment Records
The final Baystate factor is whether the alleged employer maintained employment
records for all employees.3 Here, the complaint alleges that defendants have centralized records,
including payroll records. (Compl. ¶ 24). It also alleges that defendants use a centralized, webbased human resources tool for employees, called HRConnect. (Compl. ¶ 29). While these
allegations would support a reasonable inference that all defendants may have access to
plaintiff’s employment records, they do not indicate that any particular defendant (other than,
perhaps, UMMMC) plays an active role in maintaining her records. Without any evidence of
active involvement, the facts as pleaded do not indicate that any defendant other than UMMMC
exercised control over the economic aspects of plaintiff’s employment relationship.
3
In Baystate, the company touted the advantages of having the company handle paperwork and records to
clients in its advertising materials. 163 F.3d at 676.
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5.
Summary of the Baystate Factors
In sum, the complaint has not set forth any specific allegation that implicate any
defendant other than UMMMC (which directly employs her) and possibly UMMHC (the parent
company of UMMMC). The complaint provides no basis for finding that an employer-employee
relationship existed between any of the other defendants and plaintiff. Absent such a
relationship, there is no allegation that plaintiff’s injuries are fairly traceable to those defendants,
nor is there any allegation that a favorable decision against those defendants would redress her
alleged injuries. Plaintiff therefore lacks standing to assert claims against those five defendants.
Accordingly, defendants’ motion to dismiss will be granted as to UMass Memorial Hospitals,
Inc.; HealthAlliance Hospital; Marlborough Hospital; The Clinton Hospital Association; and
Wing Memorial Hospital Corporation.
The complaint does include allegations against UMMHC that are relevant to one of the
Baystate factors. In particular, it alleges that UMMHC had some authority to determine the rate
and method of her payment. However, based on the totality of the circumstances, that one factor
is not sufficient to demonstrate that plaintiff was “economically dependent” on the alleged
employer. Simply put, the complaint does not set forth a plausible claim that UMMHC
exercised sufficient control over her employment conditions to be considered an employer under
the FLSA. Accordingly, plaintiff also lacks standing to assert claims under the FLSA against
UMMHC.
C.
Employer Status of Individual Defendants
An individual corporate officer can be an employer along with a corporation, and thus
can be jointly and severally liable under the FLSA. Donovan v. Agnew, 712 F.2d 1509, 1511
15
(1st Cir. 1983). However, the First Circuit has repeatedly indicated that “not every corporate
employee who exercised supervisory control should be held personally liable.” Chao v. Hotel
Oasis, Inc., 493 F.3d 26, 34 (1st Cir. 2007); see also Donovan, 712 F.2d at 1512-13. The
“economic reality” test also governs the analysis for determining whether individuals are
employers under the FLSA, but focuses on “the role played by the corporate officers in causing
the corporation to under-compensate employees and to prefer the payment of other obligations
and/or the retention of profits.” Baystate, 163 F.3d at 677-78.4
Plaintiff alleges that John O’Brien is the President and CEO of “UMass” and that Patricia
Webb was the Senior Vice President and Chief Human Resources Offices of “UMass” until
2010. (Compl. ¶¶ 40, 74). “UMass” is a term used in the complaint to refer to a collective
amalgamation of all seven corporate defendants. (Compl. ¶ 10). The complaint does not include
any specific allegations as to which entity employed the individual defendants.
In dismissing the second amended complaint, this Court previously made clear that
“[b]efore the Court can determine if an officer exerted control over employee compensation (and
by extension, plaintiff’s compensation) within a corporate entity, it must be possible to identify
which entity employed . . . the individual defendants.” Cavallaro v. UMass Mem. Health Care,
Inc., 2011 U.S. Dist. LEXIS 61003, at *18 (D. Mass. June 8, 2011). Despite this clear notice,
the complaint still fails to allege an actual corporate entity, defined as such by something other
than plaintiff’s complaint, that actually employed the individual defendants.
4
Several factors are relevant to the personal liability analysis. They include an individual’s (1) significant
ownership interest; (2) degree of control over the corporations’ day-to-day functions, including employee
compensation; and (3) personal role in business decisions that contributed to the alleged FLSA violations. Baystate,
163 F.3d at 677-78. Because the complaint does not allege which corporate entity employed plaintiffs, the Court
need not assess whether the complaint alleges that the individual defendants exercise such significant control over
that entity’s day-to-day operations and such direct involvement in that entity’s relevant business decisions that they
could be found personally liable for their actions.
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It is possible that O’Brien and/or Webb were employed by UMMMC, the one entity
against whom plaintiff has plausibly alleged FLSA violations. However, it is also possible that
they were employed by one of the other six corporate defendants, or by some other entity
entirely. To survive a motion to dismiss, a complaint cannot simply raise the sheer possibility
that the named individual defendants were corporate officers of plaintiff’s employer. Plaintiff
had clear notice, based on this Court’s prior ruling, that the Court could not determine a
corporate officer’s liability under the FLSA without knowing which entity employed that officer.
Plaintiff nonetheless has not set forth any allegations in the complaint that identify defendants’
employer, nor any facts that support an inference that defendants were directly involved in
causing UMMMC’s alleged FLSA violations. Thus, the claims against both individual
defendants will be dismissed.
D.
Collective Action Allegations
Section 216(b) of the FLSA permits employees to recover unpaid overtime compensation
by suing an employer "on behalf of . . . themselves and other employees similarly situated." 29
U.S.C. §216(b). There are two requirements for a representative action: first, the plaintiffs must
actually be similarly situated, and second, all plaintiffs must signal in writing their affirmative
consent to participate in the action. Manning v. Boston Med. Ctr. Corp., 2012 U.S. Dist. LEXIS
54692 at *7-8 (D. Mass. Apr. 18, 2012).
Defendants have moved to dismiss or strike all collective action allegations in this case.
They contend that plaintiff has not adequately pleaded the collective action claims, and that the
alleged class is too broad. Plaintiff cites a number of district court cases for the proposition that
it is premature to consider whether a named plaintiff is similarly situated to putative plaintiffs on
17
a motion to dismiss. See, e.g., Myers v. Medquist, Inc., 2006 WL 3751210 at *4-5 (D.N.J. Dec.
20, 2006). Plaintiff urges the Court to defer a decision on the sufficiency of the collective action
allegations until a motion for conditional certification has been filed.
Courts generally will not conduct a full inquiry into collective action allegations at this
stage, but collective action claims must nonetheless create a plausible entitlement to relief by
putative class members to survive a motion to dismiss. Cf. Landry v. Peter Pan Bus Lines, Inc.,
2009 U.S. Dist. LEXIS 129873 at *3 (D. Mass. Nov. 20, 2009). In order to proceed, a plaintiff
must properly allege a factual basis showing that there are similarly situated persons entitled to
relief pursuant to 29 U.S.C. § 216(b) and/or that common issues of fact predominate sufficiently
to satisfy the traditional Fed. R. Civ. P. 12(b)(6) standard. Id. (citing Iqbal v. Twombly, 556 U.S.
662 (2008)). While the FLSA does not define the term "similarly situated," plaintiffs may
survive a motion to dismiss if they at least "provide a modest factual showing sufficient to
demonstrate that they and potential plaintiffs . . . were victims of a common policy or plan that
violated the law." Zhong v. August August Corp., 498 F. Supp. 2d 625, 630 (S.D.N.Y. 2007).
Plaintiff alleges that the class she seeks to represent consists of hourly employees
employed in more than fifty different jobs. (Compl. ¶¶ 6, 131). The putative class includes
persons who, like the named plaintiff, worked as registered nurses and were compensated at an
hourly rate. (Compl. ¶ 131). It also includes a wide variety of other hourly employees,
including technicians, secretaries, custodians, clerks, porters, and medical underwriters. (Id.).
The complaint alleges that all members of the alleged class were subject to defendants' uniform
"Meal Break Deduction Policy," whereby defendants' timekeeping system automatically
deducted time from employees' paychecks each day for meals and other breaks. (Compl. ¶ 107).
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It further alleges that all members of the putative class were subject to a uniform "Unpaid Preand Post-Schedule Work Policy," whereby they were required to perform uncompensated work
before and after their scheduled shifts. (Compl. ¶ 141).
The Court is skeptical that plaintiff will be able to demonstrate that such a broad group of
putative class members are so similarly situated that common issues of law or fact would
predominate if the collective action claims were to go forward. Indeed, the complaint itself
undermines any suggestion that putative plaintiffs are similarly situated. Plaintiff sets forth
specific factual allegations of the type of work she performed during her meal breaks and before
and after her scheduled shifts, including charting, responding to codes, preparing medications,
and caring for patients. (Compl. ¶¶ 113, 145). Even a cursory glance at the job positions that
plaintiff includes in the putative class indicates that not all putative plaintiffs would be involved
in this type of work. It is difficult to imagine, for example, that custodians or porters at
defendants' facilities were subject to the same policies as registered nurses concerning their
responsibilities during meal breaks, and that those policies resulted in similar violations of the
FLSA.
This is particularly the case because not all forms of "work" are compensable. Pruell v.
Christi, 678 F.3d 10, 14 (1st Cir. 2012). When confronted with a putative plaintiff class whose
"job function . . . and daily tasks share little to no common ground," this Court finds it unlikely
that common issues of law or fact would predominate. See Manning, 2012 U.S. Dist. LEXIS
54692 at *10. Rather, it seems likely that plaintiff's broadly defined collective action claims
would become bogged down in extensive individualized analysis as to which job-related
activities were performed by each individual, whether these forms of work were compensable,
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and whether any compensation was paid.
Nonetheless, the Court will not dismiss plaintiff's collective action allegations at this
stage. As to those putative plaintiffs employed by UMMMC, the complaint has sufficiently
alleged that members of the alleged class were subject to a uniform policy that violated the
FLSA. While it seems highly doubtful that the collective action claims will survive in their
current form, it is premature to resolve those issues at this stage of the litigation. See, e.g., Lang
v. DirectTV, Inc., 735 F. Supp. 2d 421, 436 (E.D. La. 2010). Accordingly, the Court will deny
defendants' motion to dismiss or strike plaintiff's collective action allegations as to putative class
members employed by UMMMC.
IV.
Conclusion
For the foregoing reasons, defendants’ partial motion to dismiss is GRANTED,
defendants’ motion to dismiss the collective action allegations is GRANTED as to those putative
class members employed by defendants other than UMMMC and otherwise DENIED, and
defendants’ motion to stay proceedings is DENIED as moot.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: January 28, 2013
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