JELKS v. NEWARK COMMUNITY HEALTH CENTERS

Filing 36

OPINION. Signed by Judge Jose L. Linares on 11/22/13. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GLORIA JELKS,
Civil Action No. 13-886 (JLL)

Plaintiff,
v.

OPINION

NEWARK COMMUNITY HEALTH
CENTERS,
Defendant.

LINARES, District Judge.
This matter comes before the Court by way of Defendant Newark Community Health
Centers (hereinafter “Defendant”)’s motion to dismiss Counts Five and Six of Plaintiff Gloria
Jelks (“Plaintiff’)’s Second Amended Complaint (“SAC”) pursuant to Federal Rule of Civil
Procedure I 2(b)(6).

The Court has considered the submissions made in support of and in

opposition to the instant motion and decides this motion without oral argument pursuant
to
Federal Rule of Civil Procedure 78. For the reasons set forth below, Defendant’s motion
is
granted in part and denied in part.
I.

BACKGROUND
This action arises from Plaintiffs allegations that Defendant violated Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
Employment Act (“ADEA”), 29 U.S.C.

§

§

2000e, et seq., the Age Discrimination in

621, et seq., the Equal Pay Act (“EPA”), 29 U.S.C.

206, and the Fair Labor Standards Act (“FLSA”), 29 U.S.C.

1

§

201 et seq.

§

Plaintiff was hired by Defendant in 2009 to work as a Certified Medical TechnicianPatient Navigator in its health service centers. (SAC
years old. (Id. at

11

¶ 5.)

At that time, Plaintiff was fifty-nine

8.) She alleges that in January 2010, manager Simone Domingos informed

the staff that they had to clock out for the day at 5:00 p.m., and that failure to do so would result
in termination.

(Id. at

¶

31,)

Subsequently, however, another supervisor, Provider Felicia

Briggs, told the staff that it was against the law to clock out and leave while patients were still at
the facility.

(Id. at

¶ 32.)

Plaintiff alleges that, in accordance with Domingos’s instruction, she

would typically clock out at 5:00 p.m., but continue to work until 8:00 or 9:00 p.m. (Id. at 33.)
¶
Therefore, Plaintiff would typically work three or four hours overtime without compensation.
(Id.)
Plaintiff also alleges that she experienced a hostile work environment and discrimination
based on her age and gender while working for Defendant. Specifically, Plaintiff alleges that on
August 28, 2009, she overheard a telephone conversation between Jamilah Davis, her supervisor,
and the Director of Nursing, Joanne Williams.

(Id. at

¶ 21.)

Specifically, Plaintiff claims that

she overheard Davis tell Williams, “I can’t stand that old lady.” (Id.) Plaintiff claims to have
made several complaints to Human Resources about the hostile treatment she received from
Davis. (See, e.g., id. at ¶ 22-24.)
In addition, Plaintiff claims to have been discriminated against on the basis of her gender
by Joseph Gioia, the Manager of Human Resources. She alleges that Gioia made deroga
tory
comments to female employees, attempted to pit female employees against each other, and
treated male employees in a preferential manner. (Id. at 29.)
¶
Plaintiff was ultimately terminated by Gioia after recording a conversation at work, in
violation of company policy. (Id. at ¶J 37-38.) Plaintiff recorded a conversation betwee herself
n

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and Domingos related to Davis’s poor evaluation of Plaintiff. (Id. at

¶ 36.)

Plaintiff played the

recorded conversation for Gioia as proof that Plaintiff was being discriminated against. (Id. at

¶

37.) On March 10, 2010, Gioia “used the recording [as] a pretext to terminate Plaintiff due to
her complaints that Davis was continuing to discriminate against her.” (Id.) In terminating
P1aintift Defendant allegedly violated its own progressive discipline policy and did not
compensate Plaintiff for her unused vacation and personal time. (Id. at 39.)
¶
On March 4, 2013, Plaintiff filed an Amended Complaint, pro Se, against thenDefendants NCHC, Gioia, and Davis. [CM/ECF No. 3.] On July 23, 2013, this Court dismissed
Plaintiff’s EPA claim without prejudice, dismissed Plaintiff’s Title VII and ADEA claims
against Gioia and Davis with prejudice, and upheld Plaintiff’s Title VII and ADEA claims
against Defendant NCHC. [CM/ECF No. 15.] Thereafter, Plaintiff obtained counsel and filed
a
Second Amended Complaint on September 23, 2013. [CM/ECF No. 24.] In her Second
Amended Complaint, Plaintiff alleged that Defendant NCHC, now the sole defendant in this
matter, discriminated against her on account of her age and gender; created a hostile work
environment; retaliated against her for lodging complaints; failed to pay her for earned vacatio
n
and personal time in violation of the EPA; failed to pay her for overtime in violation of FLSA;
and wrongfully terminated her employment in violation of Title VII and the ADEA. On Octobe
r
7, 2013, Defendant moved to dismiss Counts Five and Six of Plaintiffs Second Amended
Complaint, for willful violations of the EPA and FLSA, respectively.
II.

LEGAL STANDARD

For a complaint to survive dismissal, it “must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662,
678 (2009) (citing Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threa
dbare recitals

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of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id.
In determining the sufficiency of a complaint, the Court must accept all well-pleaded
factual allegations in the complaint as true and draw all reasonable inferences in favor of the
non-moving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). But,
“the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. Thus, legal conclusions draped in the
guise of factual allegations may not benefit from the presumption of truthfulness. Id.
Ill.

DISCUSSION

Defendant argues that Counts Five and Six of Plaintiff’s Second Amended Complaint
should be dismissed for the following reasons: (1) Plaintiffs EPA claim was filed outside of the
two-year statute of limitations period; and (2) Plaintiffs FLSA claim was filed outside of
the
two-year statute of limitations period, and is time-barred even if the three-year statute of
limitations period applies. The Court will address each of these arguments in turn.
A.

Timeliness of Plaintiffs EPA Claim

Defendant argues that Plaintiffs EPA claim should be dismissed because it is timebarred. Plaintiff was terminated on March 19, 2010; the present action was filed on February
13,
2013, over two years later. The EPA requires that actions be commenced within two years,
“except that a cause of action arising out of a willful violation may be commenced within
three
years after the cause of action accrued.” 29 U.S.C.

§ 255(a). “[Ajn employer ‘willfully’

violate[s] the Act when it ‘knew or showed reckless disregard for the matter of whether its
conduct was prohibited’ by [a provision of] the Fair Labor Standards Act.” Martin v.
Selker
Bros., Inc., 949 F.2d 1286, 1296 (3d Cir. 1991) (quoting McLaughlin v. Richland Shoe Co.,
486

4

U.S. 128, 133, 108 S. Ct. 1677, 100 L. Ed. 2d 115 (1988)). Insetting forth the above standa
rd
for willfulness under

§ 255(a), the Supreme Court in McLaughlin held that “[tihe fact that

Congress did not simply extend the limitations period to three years, but instead adopte a
d twotiered statute of limitations, makes it obvious that Congress intended to draw a signifi
cant
distinction between ordinary violations and willful violations.” 486 U.S. at 132. Additionally
, in
Martin, the Third Circuit stated that “whether [a defendant’s] knowledge or intent amoun
t[] to

willfulness under the statute is a question of law.” 949 F.2d at 1292. Thus, for purpos
es of a
motion to dismiss, the question is whether Plaintiff has made sufficient allegations, which
accepted as true, could demonstrate that the Defendant knew or recklessly disregarded its
legal
obligation to comply with the EPA. See Marina Wood v. Kaplan Props., 2009 U.S. Dist. LEXIS
89834, at *18..21 (D.N.J. Sept. 29, 2009).
Plaintiff contends that she has alleged facts sufficient to state a plausible claim for a
willful violation of the EPA. She claims that “NCHC was at least aware that it willful
ly violated
the EPA by not following its progressive discipline policy in furtherance of the discrim
ination [to
which] [P]laintiff was subjected, rendering its failure to compensate Plaintiff for
her earned
vacation and personal time willful.” (P1.

Opp. at 2.)

However, neither the Second Amended

Complaint nor Plaintiffs opposition demonstrates why a violation of Defendant’s progre
ssive
discipline policy is proof of a knowing or reckless disregard of the EPA.
In accordance with Iqbal, it is insufficient to merely assert that an employer’s conduc
t
was willful; the Court must look at the underlying factual allegations in the compla
int to see if
they could support such a conclusion. Iqbal, 556 U.S. at 679-80. In Martin, the
Third Circuit
mled that a district court’s finding of a willful FLSA violation was sufficiently suppor
ted where
the employer had expressed concern about the legality of the pay structure in questio
n and

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“continued using [the pay structure] despite concerns and doubts as to its legality.” 949 F.2d
at
1296. The Court held that the employer’s “evident indifference toward the requirements
imposed by the FLSA is fully consistent” with a willful violation of the Act. Id. The Second
Circuit found facts sufficient to support a jury’s finding of a willful EPA violation where
a
plaintiff complained to her employer about a discrepancy in pay between female and
male
employees but the employer did nothing even after being put on notice. Pollis v.
New Sch. for
Soc. Research, 132 F.3d 115, 119-20 (2d Cir. 1997). On the other hand, the Fifth
Circuit, in
granting summary judgment for a defendant, held that “the facts that [the plainti
ff] was paid less
than many of her male colleagues and that [her employer] knew she was dissati
sfied with this
difference [was] not enough to raise a fact question as to whether [the employer] knew
or
recklessly disregarded that its pay scale was prohibited by the FLSA.” Kiki IkossiAnastasiou v.
Bd. of Supervisors ofLa. State Univ., No. 06-031111, 579 F.3d 546, 2009 U.S. App.
LEXIS
18552, at * 16 (5th Cir. Aug. 18, 2009). The Fifth Circuit further stated that the
plaintiff “ha[d]
not provided evidence that [the employer] actually knew that the pay structu
re violated the
FLSA, or that [it] ignored or failed to investigate [her] complaints.” Id. The
Court held that,
without more, the violation was an ordinary EPA violation subject to the two-ye
ar limitations
period. Id.; see also, e.g., Ochoa v. Pearson Educ., Inc., 2012 U.S. Dist. LEX1S
3802, at *9

(D.N.J. Jan. 12, 2012) (finding facts insufficient to state a plausible willful
FLSA violation);
Melt v. GNC Corp., 2010 U.S. Dist. LEXIS 118938, at *26 (W.D. Pa. Nov.
9,2010) (“[T]here

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.”).

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Here, Plaintiff has not alleged that she complained to the Defendant that she was being
denied compensation for her earned personal and vacation time and that it disregarded her
complaints. She has not alleged that Defendants ever expressed concern that their behavi
or in
not paying her for this time may not be legal. She has simply alleged that she was termin
ated in
violation of a discipline policy that would have required Defendant, before terminating Plainti
ff,
to issue a verbal warning, then a written warning, and then a performance evalua
tion or
suspension. (See SAC ¶ 38; P1.

Opp. at 2.)

These allegations say nothing about Defendant’s

knowledge or disregard for its legal obligation under the EPA regarding compensation
for
Plaintiffs personal and vacation time. Therefore, the Court finds that Plaintiff has
failed to
adequately plead facts to support a willful violation of the EPA and that, as a result, her claim
for
a violation of the EPA is time-barred. Defendants’ motion to dismiss Count Five is
granted; it is
dismissed without prejudice.
B.

Timeliness of Plaintiffs FLSA Claim

Defendant also argues that Plaintiffs FLSA claim should be dismissed as time-barred.
FLSA is governed by the same statute of limitations as Plaintiffs EPA claim;
therefore, FLSA
claims are subject to a two-year statute of limitations for ordinary violations
and a three-year
statute of limitations for willful violations. 29 U.S.C.

§ 255(a); Abulkhair v. PPI/Time Zero,

Inc., 398 Fed. App’x. 710 (3d Cir. 2010). Defendant alleges that Plaintiffs FLSA
claim is timebarred under both the applicable two- and three-year periods.
Generally, a “[statute of] limitations defense must be raised in the answer, since
Rule
12(b) does not permit it to be raised by motion.” Robinson v. Johnson, 313 F.3d
128, 135 (3d
Cir. 2002). ‘However, the law of this Circuit (the so-called ‘Third Circuit
Rule’) permits a
limitations defense to be raised by a motion under Rule 12(b)(6), but only if the
time alleged in

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the statement of a claim shows that the cause of action has not been brought within the statute of
limitations.” Id. Thus, Defendants may prevail on the statute of limitations at the motion to
dismiss stage only if it is apparent from the face of the complaint that the cause of action is
barred. Robinson, 313 F.3d at 135; see also Cain v. Dep’t of Pub. Welfare, 442 F. App’x. 638
(3d Cir. 2011) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)); Bethel v. Jendoco Constr. Corp.,
570 F.2d 1168, 1174 (3d Cir. 1987)).
Defendant maintains that Plaintiff’s FLSA claim accrued in January 2010, the date on
which Plaintiff was instructed by Simone Domingos to punch out 5:00 p.m.

(SAC

¶ 31.)

Plaintiff alleges, however, that she would “typically” work until 8:00 p.m. or 9:00 p.m. “despite
punching out at 5:00 p.m.” (SAC

¶ 33.) In light of this, Plaintiff argues that her FLSA claim

accrued on March 19, 2010, the date she was terminated. (P1. Opp. at 4.)
“[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.” Mitchell v. C&S Wholesale Grocers, Inc., 2010 U.S.
Dist. LEXIS 68269, at *6..7 (D.N.J. July 8, 2010) (quoting Genarie v PRD Mgmt., Inc., No. 042082, 2006 U.S. Dist. LEXIS 9705, at *49 (D.N.J. Feb. 17, 2006)).

Plaintiff’s original

Complaint was filed on February 13, 2013. Therefore, if Plaintiff received a paycheck on
or
after February 13, 2010 that did not compensate her for overtime work, Plaintiff’s claim for
a
willful violation of FLSA is not time-barred. Since the facts alleged in the Second Amended
Complaint are sufficient to support the plausible inference that the accrual date of Plaintiff’s
ELSA claim is within the statute of limitations, the Court declines to dismiss Plaintiff’s
claim as
time-barred. The Court will now assess whether Plaintiff has stated a plausible claim for
a
willful violation of FLSA.

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Defendant maintains that even if the FLSA claim accrued on March 19, 2010, the date of
Plaintiff’s termination, Plaintiffs FLSA claim is nonetheless time-barred. Defendant alleges that
Plaintiff has failed to state a claim for a willful violation of the FLSA, and, therefore, the twoyear statute of limitations should apply. The Court disagrees. Plaintiff alleges that Simone
Domingos was the manager in charge, and that Domingos told the staff that if they did not punch
out at 5:00 p.m., they would be fired. (Id. at ¶ 29a, 31, 35.) Taken as true, Plaintiffs allegat
ion
plausibly demonstrates at least Defendant’s reckless disregard for whether its conduct
was
prohibited by the plain language of the FLSA. McLaughlin, 486 U.S. at 133. At this stage
of the
proceedings, this is sufficient to support a claim for a willful violation. Since the accrual date
for
the violation alleged by Plaintiff is plausibly within three years of the date of filing of the
original Complaint, the Court denies Defendants’ motion to dismiss Plaintiffs FLSA claims.
IV.

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss is granted in part and denied
in
part.

Specifically, to the extent that Defendant moved to dismiss Plaintiffs EPA claim,
the

motion is granted; Count Five is dismissed without prejudice.

To the extent that Defendant

moved to dismiss Plaintiff’s FLSA claim, the motion is denied.

Plaintiff may file a third

amended complaint by December ?o, 2013 to cure the pleading deficiencies in
her EPA claim.
Failure to do so will result in dismissal of Count Five with prejudice.
An appropriate Order accompanies this Opinion.
-

JosL. Linares
United States District Judge

Date: November22, 2013

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