Cowell v. Utopia Home Care, Inc.
MEMORANDUM AND ORDER denying 25 Motion to Dismiss. For the reasons stated herein, the Court hereby denies Defendant's motion to dismiss, andgrants Defendant's motion to strike portions of paragraphs 4, 27 and 28. Plaintiff is directed t o file a third amended complaint within two weeks. Counsel are directed to Magistrate Judge Steven Locke to complete discovery, and Plaintiffs counsel shall contact the Court if they continue to seek permission to move for conditional certification. (Ordered by Judge Leonard D. Wexler on 11/16/2015.) (Fagan, Linda)
IN CLERK'S OFFICE
U S DISTRICT COURTED N y
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
SHENITHIA COWELL, individually and on
behalf of all similarly situated individuals,
NOV 16 2015
MEMORANDUM AND ORDER
UTOPIA HOME CARE, INC.,
JOHNSON BECKER, PLLC
Jacob R. Rusch, Esq.
33 South Sixth Street, Suite 4530
Minneapolis, Minnesota 55402
Attorneys for Plaintiff
SOMERS SCHWARTZ, P.C.
Jason J. Thompson, Esq.
Jesse L. Young, Esq.
One Towne Square, Suite 1700
Southfield, MICHIGAN 48076
Attorneys for Plaintiff
JACKSON LEWIS P.C.
Paul J. Siegel, Esq.
Ana C. Shields, Esq.
Noel P. Tripp, Esq.
58 South Service Road, Suite 250
Melville, NY 11747
Attorneys for Defendant
WEJ(LER, District Judge:
Plaintiff Shenithia Cowell ("Cowell" or "Plaintiff') brings this action, individually and on
behalf of others similarly situated, against Defendant Utopia Home Care, Inc. ("Utopia" or
"Defendant") for failure to pay proper wages owed under Fair Labor Standards Act ("FLSA"), 29
U.S.C. §§ 201, et seq. and under New York law, specifically the New York Payment ofWages
("NYPOW"), §§ 190, et seq., New York Minimum Wage Act ("NYMWA"), §§ 650, et seq., and
12 N.Y.C.R.R. §§ 142, et seq. Defendant moves to dismiss pursuant to Federal Rules of Civil
Procedure ("Fed.R.Civ.P."), Rule 12(b)(6) and to strike certain paragraphs of Plaintiffs
complaint pursuant to Rule 12(f). For the reasons discussed below, Defendant's motion to
dismiss is denied and Defendant's motion to strike is granted.
The following facts are alleged in Plaintiffs second amended complaint ("Complaint" or
"Cmplt."). Utopia is a New York corporation that provides in-home personal care. It operates in
six states and employs from 1000-5000 people as nurses, therapists, home-health aides, personal
care aides, live-in aides and homemakers. Cmplt. ~~ 2, 12-15. Plaintiff was employed by Utopia
from 2003 through January 2013 as a Home Health Aide ("HHA"). Cmplt. ~ 10.
Plaintiff alleges that as a HHA, she regularly worked more than 40 hours per week in the
home ofUtopia's clients providing "domestic services." Complt. ~ 17. Plaintiff alleges those
meal preparation and service; shopping for groceries and other items; washing clothes;
errands outside of the home; shopping for supplies; medical and other appointments;
personal hygiene care, dressing, and cleaning; and performing general household cleaning
including mopping, vacuuming, and sweeping floors throughout the house; vacuuming
the stairs and upstairs bathrooms, hallways, and common areas including those not
utilized by Defendant's client; making beds; washing dishes; dusting the whole house;
cleaning the refrigerator, and oven; cleaning all bathrooms; cleaning the whole house;
sorting and removing of trash; shoveling snow and helping with lawn care and gardens.
17. Plaintiff alleges she "spent approximately one-third of her time performing general
household duties." Id.
Plaintiff alleges she regularly worked over 50 hours per week and performed general
household work more than 20 percent of that time. Id., 24. Plaintiff received only straight-time
compensation for all hours worked, even for those hours worked over forty. While her pay stub
reflected "OVERTIME," she did not receive a wage at one and one-half her regular rate for those
hours worked over forty per week. Id., 25. 1 Plaintiff also alleges that pursuant to Defendant's
policy, she regularly reported to work ten minutes early, which was not reported on her payroll
records and for which she was not paid, even though she did work during that time. Id. , 20-22.
According to Plaintiff, Utopia knew that the domestic companionship service exemption
to overtime and minimum wage requirements does not apply if the employee performs "general
household work" for more than 20 percent of their weekly hours. Id. ,, 26-31.
The Complaint includes collective action allegations on behalf of other HHA or personal
care aid ("PCA") employees of Utopia who also were not paid for time worked prior to the start
of their shift and/or were not paid the proper overtime for hours worked over forty. Id. ,, 35.
Plaintiff alleges these other employees, who number in the thousands and were employed in
similar positions and subjected to the same policies of Defendant, share the common question of
whether they were exempt or employed to perform general household work more than 20 percent
oftheir weekly hours. Id. ,, 37-40. 2 Plaintiff makes similar allegations to support a class action
on her claims under New York law. Id. ,, 42-47.
Examples of Plaintiffs pay stubs are attached to the Complaint as Exhibit ("Ex.") C.
The Court has previously ruled that Plaintiffs motion for class certification can be filed
following this motion to dismiss.
Plaintiff asserts claims under the FLSA, NYMWA and NYPOW for failure to pay
overtime and for failure to compensate Plaintiff for her pre-shift work, and for failure to keep
accurate records. Plaintiff also asserts a claim for breach of contract for Defendant's failure to
pay Plaintiff her hourly rate for uncompensat-ed pre-shift work and a breach of good faith and fair
dealing for not keeping proper records of Plaintiffs work.
Defendant's Motion to Dismiss
Defendant moves to dismiss, claiming that even accepting the allegations as true, they do
not adequately state a claim that Plaintiff performed a sufficient amount of "general household
work" to eliminate the exemption; nor do they adequately state a claim for unpaid work.
Defendant also argues that the breach of contract claim for her unpaid time is not permitted under
the FLSA or New York wage laws, and even if not dismissed on the merits, should be referred to
state court since it raises a novel question. Finally, Defendant moves to strike paragraphs 4, 27
and 28 from Plaintiffs complaint, arguing they contain inflammatory, extraneous and immaterial
references not appropriate for a complaint. Plaintiff opposes Defendant's motion in its entirety.
Standards on Motion to Dismiss
In considering a motion to dismiss made pursuant to Rule 12(b)(6), the court must accept
the factual allegations in the complaints as true and draw all reasonable inferences in favor of the
plaintiff. Lundy v. Catholic Health System of Long Island Inc., 711 F.3d 106, 113 (2d Cir. 2013)
(citations omitted); Martine's Service Center. Inc. v. Town ofWallkill, 2014 WL 321943, *1 (2d
Cir. 2014) (citations omitted); Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 58-59
(2d Cir. 2010). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court
rejected the standard set forth in Conley v. Gibson, 355 U.S. 41 (1957) that a complaint should
not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Id. at 45-46. The Supreme Court
discarded the "no set of facts" language in favor of the requirement that plaintiff plead enough
facts "to state a claim for relief that is plausible on its face." Twombly, 550 U.S. at 570; see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The "short and plain" pleading standard of Rule 8
of the Fed.R.Civ.Proc. does not require "'detailed factual allegations,' but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, at 678, quoting
Twombley, at 555 (other citations omitted). Although heightened factual pleading is not the new
standard, Twombley holds that a "formulaic recitation of cause of action's elements will not do.
Factual allegations must be enough to raise a right to relief above the speculative level."
Twombley, at 555. "Determining whether a complaint states a plausible claim for relief' is a
"context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Iqbal, at 679. Reciting bare legal conclusions is insufficient, and "[w]hen there
are well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief." Iqbal, at 679. A pleading that does
nothing more than recite bare legal conclusions is insufficient to "unlock the doors of discovery."
Iqbal, at 678-679.
Defendant Utopia argues that Plaintiffs allegations, even accepted as true, fail to meet
the pleading standards required by Iqbal since they do not state a claim under the FLSA or New
York law that is "plausible on its face." Instead, Defendant argues the complaint merely makes
formulaic recitals of the elements of the claim, asserting no more than legal conclusions, and thus
falling short of the Iqbal demand that a "plausible" claim be stated.
A. The "Companionship Services" Exemption
The critical issue in this case is whether the Plaintiff and other class members fall within
the "companionship services" exemption. 29 U.S.C. § 213 lists exemptions to the minimum
wage and maximum hour requirements of the FLSA, 29 U.S.C §§ 206 and 207. The
requirements do not apply to "any employee employed in domestic service employment to
provide companionship services for individuals who (because of age or infirmity) are unable to
care for themselves (as such terms are defined and delimited by regulations of the Secretary)."
29 U.S.C. § 213(a)(15).
29 C.F.R. § 552.6, applicable to the employment at issue here, states that companionship
services means providing "fellowship, care, and protection for a person who, because of
advanced age or physical or mental infirmity, cannot care for his or her own needs." It states
such services may include:
household work related to the care of the aged or infirm person such as meal preparation,
bed making, washing of clothes, and other similar services. They may also include the
performance of general household work: Provided, however, That such work is
incidental, i.e., does not exceed 20 percent of the total weekly hours worked.
29 C.F.R. § 552.6, effective until January 1, 2015 (italics in original).
The Department ofLabor issued an opinion letter in March 15, 1995 on the companion
services exemption, distinguishing work related to the "personal care" of the patient versus
"general household work." It states that "such activities as cleaning the patient's bedroom,
bathroom or kitchen, picking up groceries, medicine, and dry cleaning would be related to
personal care of the patient" which would be "the type ofhousehold work that would be exempt
work." See USDOL Opinion Letter, 1995 DOLWH Lexis 22, at *2. It continues on to say:
However, activities involving heavy cleaning such as cleaning refrigerators, ovens, trash
or garbage removal and cleaning the rest of a "trashy" house would be general household
work or nonexempt work that is subject to the 20 percent time limitation.
Defendant argues that to state a claim for non-exempt work, Plaintiff must state that the
amount of "general household work" she did each week exceeded 20% of her work that week.
Defendant argues Plaintiffs allegations here do not meet this burden, and fail to provide facts
indicating the household work she performed was not exempt work that was performed for the
personal care of the patient. Defendant also argues Plaintiff merely makes conclusory allegations
that do no more than track the language of the statute and are insufficient based on Lundy v.
Catholic Health System of Long Island Inc., 711 F.3d 106 (2d Cir. 2013).
The allegation of Plaintiffs complaint that is critical to this issue is paragraph 17. It
Throughout her employment with Defendant, Plaintiff regularly worked more than forty
(40) hours per week in the home of Defendant's client(s) to whom she was assigned by
Defendant to provide domestic services; including, but not limited to, meal preparation
and service; shopping for groceries and other items; washing clothes; errands outside of
the home; shopping for supplies; medical and other appointment; personal hygiene care,
dressing, and cleaning; and performing general household cleaning including mopping,
vacuuming, and sweeping floors throughout the house; vacuuming the stairs and upstairs
bathrooms, hallways, and common areas including those not utilized by Defendant's
client; making beds; washing dishes; dusting the whole house; cleaning the kitchen,
refrigerator, and oven; cleaning all bathrooms; cleaning the whole house; sorting and
removing of trash; shoveling snow and helping with lawn care and gardens. Plaintiff
spent approximately one-third of her time performing general household cleaning duties.
Cmplt., ~ 17.
The parties point to three cases to argue their positions concerning whether the allegations
here sufficiently state a claim: Torres v. Ridgewood Bushwick Senior Citizens Homecare
Council Inc., No. 08-CV-3678, 2009 WL 1086935 (E.D.N.Y. April22, 2009); and Herrera v.
Council for Human Services Home Care Services Corp., No. 05-CV-10734, 2008 WL 4104025
(S.D.N.Y. August 28, 2008); and Lamar v.Sunnyside Community Services. Inc., No. 11-CV4439, 2012 WL 3288770 (E.D.N.Y. August 9, 2012).
In Torres, the Court granted a motion to dismiss, finding the plaintiff's allegations did not
sufficiently state that the work performed was non-exempt. Relying on the language of the
exemption regulation and the DOL Opinion Letter cited above, the Court found that the
complaint --that alleged that plaintiff's work included cleaning the client's house, preparing
meals, bathing the patient, doing laundry and making and changing the bed -- failed since they
did not allege any "heavy cleaning," and "all of plaintiff's work as alleged in the complaint
would constitute household work related to the care of the client." Torres, at *4. Indeed, the
plaintiff conceded at oral argument that she had not done any of the "heavy cleaning" work
described in the DOL Opinion Letter. Id. The Court found that "[p]laintiff's allegations compel
the conclusion that they have not spent 20% or more of their time performing 'general household
work' as that term is defined under exemption," and granted the motion to dismiss. Id. at *5.
The plaintiff in Herrera also claimed that she performed general household work for more
than 20 percent of her total hours worked. The Court dismissed her complaint, finding that her
"bare allegation" that she "performed work as a 'home health attendant and related activities"'
did not support her claim, and granted leave to replead. Herrera, 208 WL 4104025, at *2.
In Lamur, a motion to dismiss was denied where Plaintiff alleged she spent one-third of
her time on general household duties, which included removing garbage, cleaning the refrigerator
and oven, cleaning hallways and common areas. Id., 2012 WL 3288770, at *3 (distinguishing
the allegations ofLamur with those of Torres).
Here, Defendant argues that Plaintiff's allegations are devoid of factual support indicating
that general household work constituted more than 20% of her hours worked. Specifically,
Defendant argues that Plaintiff fails to indicate the time she spent doing non-exempt work, or
identifying the weeks in which the non-exempt work was performed. Defendant also challenges
whether Plaintiff could have spent 11.2 hours per week (20% of Plaintiff's 56-hour work week)
doing "general household work" while "caring for a paraplegic client and surely did not do so
week after week." See Defendant's Memorandum of Law in Support ("Def. Mem."), at 8-9.
Defendant's arguments are unpersuasive. Unlike the plaintiff in Torres, who conceded
she did not do any "heavy cleaning" and failed to allege any general household work, or the
plaintiff in Herrera who made only "bare allegations" that she worked as a home health aide and
performed "related activities," Plaintiff here alleges she spent one-third of her time on general
household cleaning, "including mopping, vacuuming, and sweeping floors throughout the house;
vacuuming the stairs and upstairs bathrooms, hallways, and common areas including those not
utilized by Defendant's client; making beds; washing dishes; dusting the whole house; cleaning
the kitchen, refrigerator, and oven; cleaning all bathrooms; cleaning the whole house; sorting and
removing oftrash; shoveling snow and helping with lawn care and gardens." Cmplt.
Court disagrees with Defendant and finds that the pleadings standard do not require Plaintiff to
specifically allege the particular time of her day or week spent on general household duties
versus exempt work dedicated to the personal care of the patient. Plaintiff alleges the type of
work she performed, which indicates it is in the nature of"general household work," and that she
spent one-third of her total hours worked on such tasks. The Court finds such allegations
sufficiently state a plausible claim the Plaintiff is not covered by the exemption, and denies the
motion to dismiss. 3 See Lamur, at *4.
Defendant's argument that it is not credible that Plaintiff spent that amount of time on
general household work while caring for a paraplegic is misplaced at this stage of the
proceedings. In evaluating a motion to dismiss, the Court must accept Plaintiffs allegations as
true, and "then determine whether they plausibly give rise to an entitlement to relief," Iqbal, at
679, which as stated above, the Court does. Defendant is not precluded from making the
argument that Plaintiff could not or did not spend the requisite amount of time on general
household tasks in a motion for summary judgment, following discovery.
B. Plaintiffs Claim for Off-the-Clock and Overtime Work
Defendant also argues that even ifPlaintiffs allegations sufficiently state that the
companion services exemption does not apply to her, her claims for off-the-clock and overtime
wages do not state a claim. Defendant argues that Plaintiffs vague, formulaic allegations merely
track the elements of the claim and fail to meet the pleading standards of Lundy v. Catholic
Health System of Long Island Inc., 711 F.3d 106 (2d Cir. 2013) and Nakahata v. New YorkPresbyterian Healthcare Sys., 723 F.3d 192 (2d Cir. 2013).
Defendant also argues that Plaintiffs claim fails because she does not sufficiently allege
that Defendant had knowledge that Plaintiff was performing non-exempt work for more than
20% of her work week, citing White v. Baptist Mem'l Health Care Corp., 699 F.3d 869, 873-76
(61h Cir. 2013). The Court disagrees. The Court finds that Plaintiffhas alleged Defendant's
knowledge in paragraphs 4, 26, 27 and 29 of the Complaint, and further notes that the case citedconcerning summary judgment on whether the employer had reason to know the plaintiff was
actually performing work during mealtime - is not analogous to the issues here.
In Lundy, the Second Circuit found that plaintiffs' overtime claims failed because they did
not allege a "single workweek in which they worked at least 40 hours and also worked
uncompensated time in excess of 40 hours." Lundy, 711 F.3d at 114. In. Nakahata, the Second
Circuit affirmed the dismissal of an FLSA overtime claim where plaintiff alleged she and the class
members "regularly worked hours both under and in excess of forty per week and were not paid
for all ofthose hours." Nakahata, 723 F.3d at 199. The Second Circuit ruled these allegations
failed since they did not provide "sufficient facts to make it plausible that they worked
uncompensated hours on excess of 40 in a given week." Id. at 201. The Court further stated that
a plaintiff "must provide sufficient detail about the length and frequency of their unpaid work to
support a reasonable inference that they worked more than forty hours in a week." Id. Leave to
replead was granted. Id. at 201; 205.
The Court finds that the complaint at issue here is distinguishable from those in Lundy and
Nakahata. Here, Plaintiff alleges that she regularly worked over fifty hours a week, which is
supported by the pay stubs attached to the complaint reflecting 56 hour work weeks. Cmplt.
Ex. C: pay stubs. The issue here is not whether the pre-shift hours contribute to reaching the forty
hour threshold, which was an issue in both Lundy and Nakahata. The issue here is whether the
allegations sufficiently state a claim for (overtime) wages due for the pre-shift work.
Plaintiff alleges it was Defendant's established policy that all home health aides and
personal care aides report to work at least 10 minutes prior to the start of their shift, during which
time work was performed. Cmplt.
20-21. Plaintiff alleges that her time records do not reflect
the extra ten minutes of pre-shift work she performed. Cmplt.
22. Taking the allegations as
true, the Court finds that they sufficiently state a claim that Plaintiff was entitled to overtime for
those hours worked. 4 The Court finds that these allegations provide sufficient detail about the
length and frequency of the pre-shift work found lacking in Lundy and Nakahata, and denies
Defendant's motion to dismiss the complaint on this basis. 5
Breach of Contract Claim
Plaintiff also asserts a breach of contract claim, which seeks to recover wages owed for her
pre-shift work. See Plaintiffs Memorandum of Law in Opposition ("Pl. Mem. "), at 18-19. The
parties recognize that as long as the worker is paid minimum wage or more, the FLSA does not
provide a claim for unpaid hours in week, even if overtime is due. Lundy, 711 F.3d at 116, citing
United States v. Klinghoffer Bros. Realty Cor.p., 285 F.2d 487, 494 (2d Cir. 1960). Therefore, it
appears that by this theory, Plaintiff seeks to recover wages due for non-overtime, pre-shift work.
To support this claim, Plaintiff alleges Defendant offered to pay her an hourly wage, which she
accepted by performing the work, including the required pre-shift work, and that Defendant's
failure to pay Plaintiff for all the time she worked constitutes a breach of a contract to pay her for
work performed, as well as a breach of the good faith and fair dealing for failure to keep track of
hours worked. Cmplt. ~~ 75-85.
Defendant argues that if this Court dismisses the FLSA claims, it should not maintain
jurisdiction over this claim, which Defendant calls a "novel issue of state law." See Def. Mem., at
19-20. Plaintiff argues the claim is not to recover overtime due under the FLSA or NYLL, but for
The validity of the FLSA claim is based on the premise that the total hours worked in
that given week equal or exceed forty.
The Court is not persuaded that Plaintiffs allegations on this issue contradict allegations
of an earlier complaint or Plaintiffs declaration, or that such contradictions, even if such do
exist, warrant dismissal of the complaint at this stage. Defendant is free to raise this issue in a
motion for summary judgment if appropriate after discovery, or at the time oftrial.
wages owed for work performed under a breach of contract theory, see Pl. Mem., at 19, and issues
of preemption under the FLSA or NYLL are not implicated.
As noted above, the Court declines to dismiss the FLSA claims. The Court finds that
Plaintiff's allegations cited above sufficiently state a claim for breach of contract for unpaid
wages, and denies Defendant's motion to dismiss the breach of contract claim.
Motion to Strike Paragraphs 4. 27 and 28
Defendant also moves to strike pursuant to Rule 12(f) allegations in Plaintiffs Complaint
that reference other litigations against Utopia as inflammatory, extraneous and immaterial.
Specifically, paragraph 4 references other litigations against this Defendant in this district and in
Florida, and paragraphs 27 and 28 contain excerpts of a deposition taken of a Utopia executive in
one of these other litigations to show that Defendant was aware of the companion services
exemption and its application. Plaintiff asserts such references are relevant to its claim of
The Court agrees that references to other litigations against this Defendant are
"immaterial, impertinent or scandalous" and inappropriate in a complaint, and are not necessary to
allege wilfulness. Defendant's motion to strike is granted, and Plaintiff is directed to file a third
amended complaint, without references to the other litigations or excerpts of deposition testimony
in paragraphs 4, 27 and 28, within two weeks of this Order.
For the reasons stated above, the Court hereby denies Defendant's motion to dismiss, and
grants Defendant's motion to strike portions ofparagraphs 4, 27 and 28. Plaintiff is directed to
file a third amended complaint within two weeks. Counsel are directed to Magistrate Judge
Steven Locke to complete discovery, and Plaintiffs counsel shall contact the Court if they
continue to seek permission to move for conditional certification.
s/ Leonard D. Wexler
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Central IsliP., New York
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