OCHOA v. PEARSON EDUCATION, INC.

Filing 16

OPINION. Signed by Judge Dennis M. Cavanaugh on 1/12/12. (dc, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ROGER OCHOA, on behalf of himself
and all others similarly situated,
Plaintiffs,
v.
PEARSON EDUCATION, INC.,
Defendant.

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Hon. Dennis M. Cavanaugh

OPINION
Civil Action No. 11-cv-1382 (DMC-JAD)

DENNIS M. CAVANAUGH, U.S.D.J.
This matter comes before the Court upon the motion by Defendant Pearson Education, Inc.
(“Defendant”) to Dismiss the Complaint of Plaintiff Roger Ochoa (“Plaintiff”), pursuant to FED . R.
CIV . P. 12(b)(6). ECF No. 8. Pursuant to FED . R. CIV . P. 78, no oral argument was heard. After
carefully considering the submissions of the parties, and based upon the following, it is the finding
of this Court that Defendant’s Motion is granted.

I.

BACKGROUND
This matter involves a collective action to recover unpaid wages, overtime, and other

damages under the Fair Labor Standards Act, 29 U.S.C. §§ 201, 216(b) (“FLSA”) and New Jersey
Law. Compl. ¶ 1, ECF No. 1. Plaintiff worked for Defendant’s publishing company as an editor
from 1999 to 2004, and again from 2006 until March 31, 2009. Compl. ¶ 12. Plaintiff states that

he was improperly classified as a salaried employee, and estimates that he worked approximately
sixty five hours per week, but was not paid at a rate of one and one half times his base hourly rate
for hours over forty worked in a week. Compl. ¶¶ 13, 16. Defendant expected Plaintiff to submit
time-sheets during his employment, but instructed Plaintiff to show no more than forty hours per
workweek, regardless of the number of hours he did in fact work. Compl. ¶ 14. The Complaint
asserts that Defendant’s actions were willful violations of the FLSA, and that Defendant had no good
faith basis for believing that its pay practices were in compliance with the law. Compl. ¶¶ 24, 25.
Plaintiff seeks to bring his first claim for relief on behalf of himself and the collective for
failure to pay overtime properly in violation of the FLSA. Compl. ¶¶ 1, 17, 22. The proposed
collective includes all editors of the level of “senior editor” and below in the hierarchy, including
but not limited to senior editors, editors, associate editors, and assistant editors, employed by
Defendant on or after the date three years before the filing of the Complaint. Compl. ¶ 17.
The second claim for relief sought in the Complaint is also for failure to pay overtime wages,
brought under the New Jersey Wage Payment Law, N.J.S.A. 34:11-4.1 (“NJWPL”). Compl. ¶ 28.
Plaintiff has since stated that he brought his NJWPL claim in error, and that he intended to seek
relief under the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a (“NJWHL”). Pl.’s Opp’n Br.
14, ECF No. 12.
Plaintiff filed his Complaint on March 11, 2011, but did not file a written consent to be a
party-plaintiff in the collective action with this Court. Defendant filed the instant Motion to Dismiss
on June 14, 2011. Plaintiff filed his Opposition on August 4, 2011. Defendant filed its Reply on
August 11, 2011. ECF No. 15. The matter is now before this Court.

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II.

STANDARD OF REVIEW
In deciding a motion under Rule 12(b)(6), the district court is “required to accept as true all

factual allegations in the complaint and draw all inferences in the facts alleged in the light most
favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). “[A]
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Id. To survive a motion to
dismiss, the complaint must state a plausible claim. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
Thus, assuming that the factual allegations in the complaint are true, those “[f]actual allegations must
be enough to raise a right to relief above a speculative level.” Bell Atl. Corp., 550 U.S. at 555.

III.

DISCUSSION

A.

FLSA Claim
Defendant seeks to dismiss Count One of the Complaint on a series of interlocking

arguments. Defendant challenges Plaintiff’s collective action by arguing that Plaintiff failed to file
a written consent to be a party-plaintiff in the collective action within the two year statute of
limitations period, and failed to plead willfulness with sufficient facts so as to justify a three year
statute of limitations period. Def.’s Mot. Br. 3, 10. Further, Defendant argues it would be futile to
grant Plaintiff leave to amend his Complaint in order to sufficiently plead willfulness. Def.’s Mot.
Br. 14. Finally, Defendant argues that not only did Plaintiff fail to properly plead a collective action,
he also did not sufficiently plead a cause of action in his individual capacity. Def.’s Mot. Br. 6.
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Defendant’s first argument, that Plaintiff failed to file written consent to join the collective
action, relies on the unique requirements for filing collective actions under the FLSA. The FLSA
permits collective actions to recover liability under its provisions, stating that any such action “may
be maintained . . . by any one or more employees for and in behalf of himself or themselves and
other employees similarly situated.” 29 U.S.C. § 216(b). To join such an action, an employee must
give his or her consent in writing, and file this consent in the court in which the collective action is
brought. Id. Causes of action under the FLSA must be commenced within two years after the cause
of action accrued. 29 U.S.C. § 255(a). In causes of action arising out of willful violations, however,
a three year statute of limitations period applies. Id. Importantly, collective actions under the FLSA
are not considered commenced as to an individual claimant until that claimant files written consent
to be a party-plaintiff. 29 U.S.C. § 256. In the instance in which a written consent is not filed
concurrently with the complaint, therefore, the action is not considered commenced until the
subsequent date on which the written consent is filed. 29 U.S.C. § 256(b).
“It is well settled that ‘[a] separate cause of action for overtime compensation accrues at each
regular payday immediately following the work period during which the services were rendered and
for which the overtime compensation is claimed.’” Henchy v. City of Absecon, 148 F.Supp.2d 435,
437 (D.N.J. 2001) (citations omitted). The last possible date of accrual for Plaintiff’s cause of
action, therefore, is March 31, 2009, the date that his employment with Defendant ended. Compl.
¶ 12. The two year statute of limitations period thus closed on March 31, 2011.
Plaintiff does not dispute that while he did file his Complaint within the two year statute of
limitations period, he did not file a separate written consent to join the collective action. Pl.’s Opp’n
Br. 3. Rather, Plaintiff argues that filing of the written consent form is not a requirement to pursuing
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his action, and even if it were, this Court could permit Plaintiff to file it now and it would “relate
back” to the filing date of his Complaint. Pl.’s Opp’n Br. 4. This argument is of no merit. Until
Plaintiff files a written consent form with this Court, he is “not considered joined to a collective
action and the statute of limitations on [his] claims is not tolled.” Cahill v. City of New Brunswick,
99 F.Supp.2d 464, 479 (D.N.J. 2000) (citing Kuhn v. Philadelphia Elec. Co., 487 F.Supp. 974 (E.D.
Pa. 1980)). Further, any such signed consent filed by Plaintiff would not “relate back” to the original
filing date of the Complaint. Id. (citing Kuhn, 487 F.Supp. at 975). Plaintiff’s collective action
claims have not been commenced within the standard two year statute of limitations period, and such
claims cannot be rescued by the “relation back” doctrine.
Plaintiff also argues, however, that his cause of action arises out of a willful violation of the
FLSA, and thus a three year statute of limitations applies. Pl.’s Opp’n Br. 4. To warrant application
of the three year statute of limitations, Plaintiff would have to show that Defendant “knew or showed
reckless disregard for the matter of whether its conduct was prohibited by the statute.” McLaughlin
v. Richland Shoe Co., 486 U.S. 128, 130 (1988). To satisfy the Iqbal pleading requirements, “it is
insufficient to merely assert that the employer’s conduct was willful; the Court must look at the
underlying factual allegations in the complaint to see if they could support more than an ordinary
FLSA violation . . . .” Mell v. GNC Corp., No. 10-945, 2010 U.S. Dist. LEXIS 118938 at *25-26
(W.D. Pa. Nov. 9, 2010) (citing Mitchell v. C&S Wholesale Grocers, Inc., No. 10-2354, 2010 U.S.
Dist. LEXIS 68269 at *12 (D.N.J. July 8, 2010)).
The Complaint alleges that Plaintiff “was expected to submit timesheets, but was instructed
not to show more than 40 hours of work per workweek, regardless of the quantity of hours he did
in fact work.” Compl. ¶ 14. In his opposition brief, Plaintiff additionally relies on allegations that
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he was “deliberately misclassified as a salaried employee.”1 Pl.’s Opp’n Br. 5. Plaintiff also asks
this Court to consider the context of his Complaint, wherein he proposed to bring this action on
behalf of other similarly situated Plaintiffs who were employed by Defendant on or after the date
three years before the filing of the Complaint, thereby referring to the three year statute of limitations
period used when willfulness is properly alleged. Pl.’s Opp’n Br. 5. Based on these facts and
circumstances, the Complaint states that “Defendant had no good faith basis for believing that their
pay practices . . . were in compliance with the law,” and that this “conduct constitutes a ‘willful’
violation of the FLSA . . . .” Compl. ¶¶ 24, 25.
These allegations do not rise significantly above legal conclusions. Plaintiff has not provided
this Court with sufficient information to determine that Defendant showed reckless disregard for
whether its pay practices violated the FLSA. See, e.g., Mell, 2010 U.S. Dist. LEXIS 118938 at *26
(“Here, however, there are no factual allegations which would support a claim that the violations
were willful, for example, reports of complaints to supervisors about having to work off the clock
which were rebuffed or ignored”); Martin v. Selker Bros., Inc., 949 F.2d 1286, 1296 (3d Cir. 1991)
(finding willfulness where Defendant told employee “hush up” concerns that there was a “fine line”
regarding the legality of its pay practices). Simply put, the facts alleged in Plaintiff’s Complaint are
insufficient to support a finding of willful violations of the FLSA. The three year statute of
limitations is therefore not appropriate in this case.
Plaintiff also argues that he filed his Complaint individually, as well as on behalf of others
similarly situated, and as such, the written consent requirement does not render his individual claim

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While Plaintiff asserts that this language is contained in his Complaint, no such
language appears in the Complaint filed with this Court.
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barred by the statute of limitations. Plaintiff cites to a District Court case from the Fourth Circuit
for the proposition that “where the record reveals an intent to file an individual claim, and the
individual claim is timely filed, it should be allowed to continue, notwithstanding the individual
plaintiff’s failure to timely file a consent to join the collective action.” Smith v. Cent. Sec. Bureau,
Inc., 231 F.Supp.2d 455, 461 (W.D. Va. 2002); Pl.’s Opp’n Br. 7. To this end, Plaintiff contends
that based on the allegations referring to him personally, such as allegations “that he worked from
1999 to 2004 and then again from 2006 to 2009,” it “only stands to reason” that Plaintiff sued in his
individual capacity, as well as on behalf of the proposed collective. Pl.’s Opp’n Br. 12.
While authority from the Third Circuit is sparse, this issue has been thoroughly explored in
a District Court opinion from the Sixth Circuit. In Frye v. Baptist Mem. Hosp., Inc., the District
Court considered an argument that the plaintiffs filed their claim individually and as a collective
action, and that written consent was not required for the individual claim. No. 07-2708, 2011 U.S.
Dist. LEXIS 45605 at *14-15 (W.D. Tenn. Apr. 27, 2011). The District Court noted that the
plaintiffs only filed the action “on behalf of themselves and all other similarly situated hourly
employees,” and not “individually and on behalf of others.” Id. at *16 (emphasis added). The
District Court found that the language in the plaintiffs’ complaint did not put the defendants on
notice that the plaintiffs were seeking to file an individual action, since on the face of the complaint,
only a representative action was asserted. Id. Similarly, the face of the Complaint in this action only
asserts a representative action. In both the caption and throughout its allegations, the Complaint
consistently states that Plaintiff is brining his cause of action “on behalf of himself and others
similarly situated.” Compl. ¶¶ 1, 22, 23. The only time the word “individual” even appears in the
Complaint is where the identities and facts of individuals within the proposed collective are
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discussed. Compl. ¶¶ 18, 20. The Court therefore finds that Plaintiff did not plead his case in his
individual capacity.
Defendant further argues that dismissal of the Complaint should be with prejudice, as
granting leave to amend would be futile. Def.’s Reply Br. 13, 14. In arguing that permitting Plaintiff
the opportunity to amend his Complaint would be futile, Defendant relies on Shaw v. Prenctice Hall
Computer Publ’g, Inc., 151 F.3d 640 (7th Cir. 1998). In that case, the Seventh Circuit held that
Prentice Hall (a trade name for Defendant in this action) properly classified a production editor as
exempt. Id.; Def.’s Mot. Br. 14. Defendant therefore argues that Defendant could not have known
or recklessly disregarded the applicability of the FLSA’s overtime provisions to editors, when case
law concerning one of Defendant’s trade names supports the decision to classify Plaintiff as exempt.
Def.’s Mot Br. 14; Def.’s Reply Br. 13. While this argument indicates a probability that any
violation by Defendant was not willful, it does not completely foreclose the possibility that sufficient
facts may exist to demonstrate reckless disregard on Defendant’s part. As indicated by the Court’s
analysis in Shaw, determination of whether an employer properly classified an employee as exempt
is a highly fact specific inquiry. 151 F.3d at 643. Therefore, the fact that a Seventh Circuit District
Court held that Prentice Hall properly classified a production editor as exempt under the FLSA does
not warrant dismissal of Plaintiff’s claim with prejudice.

B.

NJWPL Claim
In Count Two of the Complaint, Plaintiff seeks compensation for failure to pay overtime

under the NJWPA. As Plaintiff admits in his opposition brief, the NJWPA is not the proper statute
under which to bring state law claims for failure to pay overtime. Pl.’s Opp’n Br. 14. Therefore,
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Count Two of the Complaint, seeking relief under the NJWPA, is dismissed.

IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss the Complaint is granted. Count

One of the Complaint is dismissed without prejudice, and Count Two of the Complaint is dismissed
with prejudice.
S/ Dennis M.Cavanaugh
Dennis M. Cavanaugh, U.S.D.J.
Date:
Orig.:
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January 12 , 2012
Clerk
All Counsel of Record
Hon. Joseph A. Dickson, U.S.M.J.
File

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