US Department of Labor, Secretary v. Quality Granite and Cabinetry, LLC et al

Filing 22

ORDER denying 16 Motion to Dismiss. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

R. Alexander Acosta, Secretary of
Labor, United States Department of Labor
v.

Civil No. 18-cv-274-JD
Opinion No. 2018 DNH 196

Quality Granite and Cabinetry,
LLC and Christopher Bouchard

O R D E R
The Secretary of Labor filed this Fair Labor Standards Act
(“FLSA”) lawsuit against Quality Granite and Cabinetry, LLC, and
its owner, Christopher Bouchard, alleging violations of the
FLSA’s minimum wage, overtime, and record keeping provisions.
Quality Granite and Bouchard now move to dismiss the Secretary’s
allegations of minimum wage and overtime violations because they
lack sufficient specificity to state a plausible claim for
relief.

The Secretary opposes dismissal.
Standard of Review

In considering a motion to dismiss, the court accepts all
well-pleaded facts as true and resolves all reasonable
inferences in the plaintiff’s favor.

See Ocasio-Hernández v.

Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

The court

disregards conclusory allegations that simply parrot the
applicable legal standard.

Manning v. Boston Med. Ctr. Corp.,

725 F.3d 34, 43 (1st Cir. 2013).

To determine whether a

complaint survives a motion to dismiss, the court should use its
“judicial experience and common sense,” but should also avoid
disregarding a factual allegation merely because actual proof of
the alleged facts is improbable.

Id. (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
The ultimate question before the court is whether the facts
alleged in the complaint render the plaintiff’s entitlement to
relief plausible.

Id.

Rule 8 does not require a plaintiff to

plead specific or detailed allegations beyond what is required
to state a plausible claim.

Twombly, 550 U.S. at 570.
Background

Quality Granite is a granite fabricator and installation
contractor located in Concord, New Hampshire.

The Secretary

asserts that Quality Granite and Bouchard, Quality Granite’s
owner, violated the FLSA’s minimum wage and overtime provisions,
29 U.S.C. §§ 206 (minimum wage), and 207 (overtime
compensation).

In addition, the Secretary brings a claim for

failure to make and keep records adequately showing Quality
Granite’s employees’ wages and hours, in violation of 29 U.S.C.
§ 211(c).1

1Quality

Granite and Bouchard do not seek dismissal of this

claim.
2

According to the Secretary, Quality Granite and Bouchard
failed to pay two unnamed employees the minimum wage “[d]uring
two specific workweeks after February 1, 2016 . . . .”
at 3).

(Doc. 12

Without adequate records from Quality Granite showing

the employees’ hours for those specific weeks, the Secretary
calculated the average number of hours worked by the two
employees during the workweeks from February 1, 2016, to August
4, 2017.
One employee, an “installer,” “worked an average of 51.25
hours during the workweek ending February 3, 2017, and several
other weeks.”

(Doc. 12 at 3).

Quality Granite paid the

installer $350.00 for his work during the workweek ending
February 3, 2017.

The installer’s rate of pay for that workweek

when measured against the average number of hours he worked per
week between February 1, 2016, and August 4, 2017, was $6.83 per
hour, which is below the applicable minimum wage set by 29
U.S.C. § 206(a)(1)(C).
Similarly, the Secretary found that another employee, a
“fabricator,” “worked an average of 46.5 hours” per week, but
during the week ending March 25, 2016, had not been paid at all.
The Secretary further alleges that Quality Granite and
Bouchard violated the FLSA by failing to pay twenty-three
employees premium pay for overtime work between February 1,

3

2016, and August 4, 2017.

For his overtime violation claim, the

Secretary calculated the average hours worked by employees in
certain job categories (e.g., installer, fabricator, polisher,
and office worker) and measured those weekly averages against
the actual amount paid to each identified employee per week.

In

his complaint, the Secretary asserts that “in many weeks”
Quality Granite failed to compensate its employees for overtime,
but also identifies two workweeks—the week ending on November
18, 2016, and the week ending on February 17, 2017—as specific
weeks in which Quality Granite failed to provide overtime
compensation.
Discussion
Generally, Quality Granite and Bouchard argue that the
Secretary’s FLSA minimum wage and overtime violation claims fail
because the factual allegations lack adequate specificity.

The

Secretary responds that Quality Granite and Bouchard overstate
his pleading obligations.
A.

Minimum Wage Violations

Quality Granite and Bouchard argue the Secretary cannot
support his claim that they violated the FLSA’s minimum wage
provision by measuring the amount they paid to an employee in a
specific week against the average hours generally worked by that

4

employee.

Instead, Quality Granite and Bouchard assert that the

Secretary must allege the actual number of hours an employee
worked during the specific workweek and measure those hours
against the amount paid that week.

The Secretary argues that

the pleading standards in FLSA cases do not mandate that
precision.
To show that a defendant violated the FLSA’s minimum wage
provisions, a plaintiff must establish that, during a given
workweek, an employee was paid at a rate below the set minimum.
29 U.S.C. § 206.

A minimum wage violation occurs if the weekly

wage paid to an employee divided by the total time he worked in
that week is less than the applicable minimum wage.

United

States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 490 (2d
Cir. 1960); accord Hamilton Partners Healthcare Sys., Inc., 209
F. Supp. 3d 379, 394 (D. Mass. 2016).
The Secretary’s use of the employees’ average worked hours
alongside actual payment amounts for certain weeks does not
render its arithmetic too speculative to state a plausible
claim.

The average number of hours each employee worked is a

fact that allows a reasonable inference that the employee worked
approximately that number of hours during any typical workweek
in the relevant period.

5

Neither Gould v. First Student Management, LLC, 2017 WL
3731025 (D.N.H. Aug. 29, 2017), nor Chesley v. DIRECTV, Inc.,
2015 WL 3549129 (D.N.H. June 8, 2015), support defendants’
argument that the FLSA prohibits pleading based on average
hours.

In those cases, the plaintiffs alleged only that they

had worked an indefinite number of uncompensated or
undercompensated hours because they regularly performed various
uncompensated activities.

Gould, 2017 WL 3731025 (overtime

violation), at *6; Chesley, 2015 WL 3549129, at *5 (minimum wage
violation).

With only those facts, neither court could

determine without speculation the total number of hours the
employees worked in a given week, approximate or otherwise.

See

Gould, 2017 WL 3731025, at *6; Chesley, 2015 WL 3549129, at *5.
Here, the Secretary makes definite, albeit inexact, allegations
about the number of uncompensated or undercompensated hours
Quality Granite’s employees worked.
Of course, the “installer” identified by the Secretary
might have worked less than his average weekly hours during the
workweek in which Quality Granite paid him $350.00.

The

Secretary, however, alleges that Quality Granite and Bouchard
failed to maintain adequate employee records.

Quality Granite

and Bouchard will likely bear the burden at trial to bring
forward evidence to negate the reasonable inferences that can be

6

drawn from the Secretary’s approximations.

See Sec’y of Labor

v. DeSisto, 929 F.2d 789, 792 (1st Cir. 1991) (“Where the
employer has failed to keep adequate employment records, it pays
for that failure at trial by bearing the lion’s share of the
burden of proof.”) (citing Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 687-88 (1946)).

Taking the Secretary’s

allegations as true, however, the Secretary sets out a plausible
claim for an FLSA minimum wage violation.
Quality Granite and Bouchard also challenge the proof
underpinning the Secretary’s allegations and his failure to
explain the methodology he used to calculate the average number
of hours worked per week.

Those are issues that may be tested

in a motion for summary judgment or at trial.

Further

specificity or proof at this stage is not required.
Twombly, 550 U.S. at 570; Manning, 725 F.3d at 49.

See
The lack of

supporting evidence or explanation about how the Secretary
arrived at the numbers he alleges are not grounds to dismiss the
complaint.
B.

Overtime Violations

As with their argument about the Secretary’s minimum wage
violation allegations, Quality Granite and Bouchard argue that
the Secretary’s use of averaged hours measured against actual
payments cannot support his claim that they violated the FLSA’s
7

overtime pay provision.

The Secretary contends that his use of

averaged hours combined with his identification of specific
workweeks in which Quality Granite failed to pay overtime wages
satisfies the pleading requirements for an FLSA unpaid overtime
claim.
To show that a defendant violated the FLSA by failing to
pay proper overtime wages, a plaintiff must establish that an
employee was employed “for a workweek longer than forty hours”
and that hours worked in excess of forty in a week were not
compensated “at a rate not less than one and one-half times the
regular rate.”

29 U.S.C. § 207(a)(1).

A plaintiff need not

allege precisely the dates and number of hours worked giving
rise to the alleged violation.

See Chesley, 2015 WL 3549129, at

*5-*6 (“In the context of a claim for unpaid overtime wages,
there is little more for a plaintiff to allege than the number
of hours over 40 that he worked for which he was not compensated
at one and a half times his regular rate.”).

If the complaint

sets out facts showing that, for example, “defendants’ pay
practices continuously required” employees to work overtime
without the required premium pay, then the court may be able to
make a reasonable inference that the employees performed
uncompensated work.

Manning, 725 F.3d at 46-47.

8

Quality Granite and Bouchard rely on Pruell v. Caritas
Christi, in which the First Circuit affirmed the dismissal of an
FLSA complaint that stated only that the plaintiff-employees
were “not compensated” for their time worked above forty hours a
week and failed to identify any facts about how much the
employees were paid.

678 F.3d 10, 13 (1st Cir. 2012).

Unlike

the plaintiff in Pruell, however, the Secretary here offers
allegations that Quality Granite compensated the twenty-three
identified employees at specific rates that did not include
payment for overtime.

Those allegations are enough to state a

plausible and non-speculative claim for relief.

Quality Granite

and Bouchard’s challenge to the Secretary’s FLSA overtime
violation claim fails.
Conclusion
For the foregoing reasons, Quality Granite and Bouchard’s
motion to dismiss (document no. 16) is denied.
SO ORDERED.

__________________________
Joseph A. DiClerico, Jr.
United States District Judge
October 2, 2018
cc:

Robert M. Fojo, Esq.
James Glickman, Esq.
9