Biasi v. Wal-Mart Stores, Inc. et al
Filing
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DECISION AND ORDER denying # 6 Defendants' Motion to Dismiss Plaintiff's second cause of action in his Second Amended Complaint for Failure to State a Claim. This case is referred back to Magistrate Judge Baxter for a Rule 16 conference and the setting of pretrial scheduling deadlines. Signed by Chief Judge Glenn T. Suddaby on 3/14/16. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
JOSEPH BIASI, individually and on behalf
of all others similarly situated,
Plaintiffs,
6:15-CV-0454
(GTS/ATB)
v.
WAL-MART STORES EAST, LP; EARLENE
SCHAEFFER; RYAN DUNPHY; and
REBECCA PAUKSTELA,
Defendants.
__________________________________________
APPEARANCES:
OF COUNSEL:
E. STEWART JONES HACKER MURPHY, LLP
Counsel for Plaintiffs
7 Airport Park Boulevard
Latham, NY 12110-0104
RYAN M. FINN, ESQ.
DAVID I. IVERSEN, ESQ.
McCARTER & ENGLISH, LLP
Counsel for Defendants
185 Asylum Street
CityPlace I
Hartford, CT 06103-3495
PAMELA J. MOORE, ESQ.
SAMI ASAAD, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this employment discrimination and uniform maintenance
pay class action filed by Joseph Bilas (“Plaintiff”) against Wal-Mart Stores East, LP (“WalMart”), Earlene Schaeffer, Ryan Dunphy and Rebecca Paukstela (collectively “Defendants”), is
Defendants’ motion to dismiss the second cause of action in Plaintiff’s Second Amended
Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ.
P. 12(b)(6). (Dkt. No. 6.) For the reasons set forth below, Defendants’ motion is denied.
I.
RELEVANT BACKGROUND
A.
Relevant Procedural History
On March 23, 2015, Plaintiff filed a Complaint in the New York State Supreme Court,
County of Montgomery, asserting a cause of action under the New York State Human Rights
Law for sexual harassment, gender discrimination, and wrongful discharge from his employment
with Wal-Mart. (See generally Dkt. No. 1, Attach. 1 [Pl.’s State Ct. Compl.].) In addition,
Plaintiff asserted a cause of action on behalf of himself and all others similarly situated for
violations of New York State’s minimum wage laws relating to the failure to pay a “uniform
maintenance pay.” (Id., ¶ 3.) On April 15, 2015, Plaintiff removed his state court action to the
United States District Court for the Northern District of New York, pursuant to the Class Action
Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d)(2). (Dkt. No. 1 [Notice of Removal].)
After Defendants filed the present motion to dismiss, Plaintiff filed an Amended
Complaint, dated May 18, 2015, in an attempt to moot Defendants’ motion to dismiss. (Dkt. No.
18, at 1 [Pl.’s Opp’n Mem. of Law]; Dkt. No. 17 [Pl.’s Am. Compl.].) Thereafter, by stipulation
of the parties, Plaintiff filed a Second Amended Complaint to include a claim alleging a violation
of Plaintiff’s rights under Title VII of the Civil Rights Act of 1964. (Dkt. No. 26 [Parties’
Stipulation]; Dkt. No. 28 [Pl.’s 2d Am. Compl.].) Defendants contend that their motion to
dismiss Plaintiff’s second cause of action has not been mooted by the amendments to Plaintiff’s
pleadings. (Dkt. No. 21, at 1 [Defs.’ Reply Mem. of Law].)
B.
Plaintiff’s Second Amended Complaint
The allegations relevant to Plaintiffs’ second cause of action are as follows. Plaintiff was
employed by Wal-Mart as a non-exempt hourly employee for approximately twenty years. (Dkt.
No. 28, ¶ 12 [Pl.’s 2d Am. Compl.].) As part of his job, Plaintiff was required to wear a vest that
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displayed a Wal-Mart logo while working in Wal-Mart stores. (Id., ¶ 48.) Despite Wal-Mart’s
requirement that employees wear a uniform while performing their duties, Wal-Mart did not pay
to launder or maintain Plaintiff’s uniforms. (Id., ¶¶ 47, 58-59.) Plaintiff claims that, under 12
NYCRR 146-1.7, Wal-Mart was required to provide him and other similarly situated employees
with enough uniforms consistent with the average number of days they worked per week or to
compensate them with a “uniform maintenance pay” in order to pay for the maintenance of their
uniforms. (Id., ¶ 49.) Plaintiff worked five days per week but was given only two vests. (Id., ¶
56.) Plaintiff was informed that Wal-Mart’s policy was to give two uniforms to full-time
employees and one uniform to part-time employees. (Id., ¶ 58.)
Based upon the foregoing, Plaintiff seeks to establish a class consisting of all persons
who work, or have worked, as a non-exempt employee for Wal-Mart in the State of New York
during the past six years. (Id., ¶ 61.) Furthermore, Plaintiff seeks on behalf of himself and the
individual class members, among other things, damages in the amount of their unpaid minimum
wage for uniform maintenance pay. (Id., ¶¶ 74-77.)
II.
PARTIES’ ARGUMENTS ON DEFENDANTS’ MOTION
A.
Defendants’ Memorandum of Law-in-Chief
In support of their motion to dismiss Plaintiff’s second cause of action, Defendants argue
that 12 NYCRR § 146-1.7 is inapplicable to Wal-Mart. (Dkt. No. 6, Attach. 1, at 4-5 [Defs.’
Mem. of Law].) More specifically, Defendants argue that this provision is contained within New
York’s Hospitality Industry Wage Order, 12 NYCRR § 146-1 et seq., which applies only to the
hospitality industry. (Id.) Defendants argue that, under 12 NYCRR § 146-3.1, “hospitality
industry” is defined as either a restaurant or hotel, and that Plaintiff’s Second Amended
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Complaint fails to allege facts plausibly suggesting that Wal-Mart falls under either of these
definitions. (Id.)
B.
Plaintiff’s Opposition Memorandum of Law
Generally, in opposition to Defendants’ motion, Plaintiff argues that Wal-Mart is subject
to New York’s Hospitality Industry Wage Order because it falls under the regulation’s definition
of a restaurant. (Dkt. No. 18, at 2 [Pl.’s Opp’n Mem. of Law].) Under the Hospitality Industry
Wage Order, the term “restaurant” includes
any eating or drinking place that prepares and offers food or
beverage for human consumption either on any of its premises or
by such service as catering, banquet, box lunch, curb service or
counter service to the public, to employees, or to members or
guests of members, and services in connection therewith or
incidental thereto. The term restaurant includes but is not limited
to restaurant operations of other types of establishments, restaurant
concessions in any establishment and concessions in restaurants.
12 NYCRR § 146-3.1(b). Plaintiff argues that Wal-Mart is a restaurant under this definition
because it prepares and sells a wide variety of food and beverage items, including rotisserie
chicken, fried chicken, chicken wings, macaroni and cheese, mashed potatoes, and a large
variety of sandwiches and bakery items. (Dkt. No. 18, at 2 [Pl.’s Opp’n Mem. of Law].) In
addition, Plaintiff argues that Wal-Mart offers catering services. (Id.)
C.
Defendants’ Reply Memorandum of Law
In reply, Defendants make three arguments. First, Defendants argue that the Hospitality
Industry Wage Order does not transform every convenience store, grocery store, or retail
department store into a restaurant merely because they may have a deli section or offer certain
food items for sale. (Dkt. No. 21, at 2 [Defs.’ Reply Mem. of Law].) Rather, Defendants argue
that the definition of “restaurant” under the Hospitality Industry Wage Order requires that the
establishment be an “eating or drinking place.” (Id.)
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Second, Defendants argue that, with regard to its historical intent, the Hospitality
Industry Wage Order is “rooted in” New York Labor Law § 653.2, which applies only to “Food
Service Workers.” (Id.) Defendants argue that, under Labor Law § 651.9, food service workers
are defined as employees “primarily engaged in the serving of food or beverages to guests,
patrons or customers in the hotel or restaurant industries, including, but not limited to, wait staff,
bartenders, captains and bussing personnel; and who regularly receive tips from such guests,
patrons or customers.” (Id.) Furthermore, Defendants argue that, while the N.Y. Commissioner
of Labor appointed a Wage Board in March 2009 to review the regulations governing the wages
and tips paid to workers in the restaurant and hotel industries (in compliance with an amendment
to Labor Law § 653.2), no one from the retail industry was appointed to the Wage Board. (Id. at
3.) Similarly, Defendants argue that the Board’s report and recommendations of September
2009 gave no indication that retail department stores should be considered “eating or drinking
places” or are otherwise part of the hotel or restaurant industries. (Id. at 3-4.)
Third, and finally, Defendants argue that Plaintiff has not alleged in his Second Amended
Complaint facts plausibly suggesting that he is an employee as defined by the Hospitality
Industry Wage Order. (Id. at 4-5.) In any event, Defendants argue that Plaintiff’s job
responsibilities had no connection with the alleged restaurant operations of Wal-Mart. (Id. at 5.)
D.
Plaintiff’s Sur-Reply Memorandum of Law
In his sur-reply memorandum of law (filed with leave of the Court), Plaintiff makes three
arguments. First, Plaintiff argues that Defendants’ argument that the Hospitality Industry Wage
Order is “rooted in” New York Labor Law § 653.2 and applies only to “Food Service Workers”
is incorrect. (Dkt. No. 25, at 3 [Pl.’s Sur-Reply Mem. of Law].) In support, Plaintiff argues that
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the Hospitality Industry Wage Order applies to employees other than just “Food Service
Workers.” (Id.) Plaintiff cites the Hospitality Industry Wage Order’s Regulatory Impact
Statement, which states that “desk clerks, cleaning workers, maintenance & grounds workers,
porters, janitors, and others” also receive protection under the Hospitality Industry Wage Order.
(Id.) Furthermore, Plaintiff argues that, under 12 NYCRR § 146-3.3(a), there are three
categories of employees protected by the Hospitality Industry Wage Order: “food service
workers,” “service workers,” and “non-service workers.” (Id.) Plaintiff argues that he is a nonservice worker because he did not receive tips and his job responsibilities included delivering
food and beverage products to the area in Wal-Mart that prepared and served food. (Id.)
Plaintiff acknowledges that the Second Amended Complaint does not allege what his job duties
were but that they are “absolutely irrelevant to the issue at hand as all employees covered by the
Hospitality Industry Wage Order are covered by the Uniform Maintenance portion of the
regulation, regardless of their classification.” (Id. at 4-5.)
Second, Plaintiff argues that Defendants have selectively quoted 12 NYCRR § 146-3.1(b)
in support of their argument that Wal-Mart is not a restaurant. (Id. at 4.) Plaintiff notes that the
definition of a restaurant applies to “any” entity that sells food or beverage to the public. (Id.)
In addition, Plaintiff cites 12 NYCRR § 146-3.1, which states that hospitality industry excludes
only the following:
(1) establishments where the service of food or beverage or the
provision of lodging is not available to the public or to members or
guests of members, but is incidental to instruction, medical care,
religious observance, or the care of persons with disabilities or
those who are impoverished or other public charges; and
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(2) establishments where the service of food or beverage or the
provision of lodging is offered by any corporation, unincorporated
association, community chest, fund or foundation organized
exclusively for religious, charitable or educational purposes, no
part of the net earnings of which inures to the benefit of any
private shareholder or individual.
(Id.) Plaintiff argues that these exclusions demonstrate the breadth of the Hospitality Industry
Wage Order. (Id. at 5.) Accordingly, because Wal-Mart sells food and beverage for human
consumption both onsite and through its catering services, Plaintiff argues that it is a restaurant
under the regulation’s definition. (Id.)
Third, Plaintiff argues that Defendants have not established, as a matter of law, that WalMart does not fit the definition of a restaurant. (Id. at 6-7.) Plaintiff argues that Defendants have
requested that this Court dismiss his claim based upon Defendants’ interpretation of the
regulation, which is unsupported by the factual allegations of Plaintiff’s Second Amended
Complaint. (Id.) Plaintiff argues that, taking his allegations as true, he has set forth a plausible
claim for uniform maintenance pay. (Id. at 7.)
III.
RELEVANT LEGAL STANDARD
It has long been understood that a defendant may base a motion to dismiss for failure to
state a claim upon which relief can be granted on either or both of two grounds: (1) a challenge
to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal
cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp. 2d 204, 211, nn.15-16
(N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review).
Because such motions are often based on the first ground, a few words on that ground are
appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
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Fed. R. Civ. P. 8(a)(2) (emphasis added). In the Court’s view, this tension between permitting a
“short and plain statement” and requiring that the statement “show[]” an entitlement to relief is
often at the heart of misunderstandings that occur regarding the pleading standard established by
Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34(1)(b) at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 556
U.S. 662, 677-83, 129 S. Ct. 1937, 1949-52 (2009).
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Most notably, in Bell Atl. Corp. v. Twombly, the Supreme Court reversed an appellate
decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). In doing so, the Court
“retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct.
99 (1957), that “a complaint should not be dismissed for failure to state a claim 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.” Twombly, 550 U.S. at 561, 127 S. Ct. at 1968-69. Rather than turning on
the conceivability of an actionable claim, the Court clarified, the “fair notice” standard turns on
the plausibility of an actionable claim. Id. at 556-70, 127 S. Ct. at 1965-74. The Court
explained that, while this does not mean that a pleading need “set out in detail the facts upon
which [the claim is based],” it does mean the pleading must contain at least “some factual
allegation[s].” Id. at 555, 127 S. Ct. at 1965, n.3. More specifically, the “[f]actual allegations
must be enough to raise a right to relief above the speculative level [to a plausible level],”
assuming (of course) that all the allegations in the complaint are true. Id. at 554, 127 S. Ct.
at1965.1
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It should be emphasized that Fed. R. Civ. P. 8’s plausibility standard, explained in
Twombly, was in no way retracted or diminished by the Supreme Court’s decision (two weeks
later) in Erickson v. Pardus, in which the Court stated, “Specific facts are not necessary” to
successfully state a claim under Fed. R. Civ. P. 8(a)(2). Erickson v. Pardus, 551 U.S. 89, 93,
127 S. Ct. 2197, 2200 (2007) (emphasis added). That statement was merely an abbreviation of
the often-repeated point of law–first offered in Conley and repeated in Twombly–that a pleading
need not “set out in detail the facts upon which [the claim is based]” in order to successfully
state a claim. Twombly, 550 U.S. at 555, 127 S. Ct. at 1965, n.3 (citing Conley, 355 U.S. at 47)
(emphasis added). That statement did not mean that all pleadings may achieve the requirement
of “fair notice” without ever alleging any facts whatsoever. Clearly, there must still be enough
facts set out (however set out, whether in detail or in a generalized fashion) to raise a right to
relief above the speculative level to a plausible level. See Rusyniak, 629 F. Supp. 2d at 214 &
n.35 (explaining holding in Erickson).
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As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). “[D]etermining 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. . . . [W]here the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it
has not show[n]–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950
[internal quotation marks and citations omitted]. However, while the plausibility standard “asks
for more than a sheer possibility that a defendant has acted unlawfully,” id., it “does not impose
a probability requirement.” Twombly, 550 U.S. at 556, 127 S. Ct. at 1965.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S. Ct. at
1949. Similarly, a pleading that only “tenders naked assertions devoid of further factual
enhancement” will not suffice. Id. (internal citations and alterations omitted). Rule 8 “demands
more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” Id.
IV.
ANALYSIS
After carefully considering the matter, the Court finds that Plaintiff has alleged facts
plausibly suggesting a claim for uniform maintenance pay for the reasons stated in Plaintiff’s
opposition and sur-reply memoranda of law. (Dkt. No. 18, at 1-2 [Pl.’s Opp’n Mem. of Law];
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Dkt. No. 25, at 3-7 [Pl.’s Sur-Reply Mem. of Law].) To those reasons, the Court adds the
following analysis.
Although the Court finds that Plaintiff has stated a claim under the Hospitality Industry
Wage Order, the Court does not adopt the Plaintiff’s expansive interpretation of what constitutes
a restaurant under 12 NYCRR § 146-3.1. More specifically, the Court has not found cases in
which the Hospitality Industry Wage Order was applied in the context of a retail department
store that also offered dining services. Without case precedent to assist the Court’s analysis on
this issue, the Court cannot find that the Hospitality Industry Wage Order is intended to include
employees that work strictly within a department of a store that has no relation to its food service
operations. In other words, the Court would have difficulty accepting the argument that the
Hospitality Industry Wage Order applies to employees that work strictly within the electronics or
clothing departments of a retail store for example and do not assist in any way with the store’s
dining services.
The Court believes this is important because the Second Amended Complaint fails to
allege facts plausibly suggesting what Plaintiff’s job duties were while he was employed by WalMart. The Second Amended Complaint does, however, allege that Plaintiff assisted with
“unloading grocery items” at Wal-Mart (Dkt. No. 28, ¶ 20 [Pl.’s 2d Am. Compl.]), which the
Court believes is sufficient–albeit barely–to plausibly suggest that he is a “non-service worker”
for purposes of the Hospitality Industry Wage Order.
In sum, the Court finds that Plaintiff has alleged facts plausibly suggesting that Wal-Mart
is a restaurant under 12 NYCRR § 146-3.1(b) by alleging that Wal-Mart “prepares and offers
food or beverage for human consumption either on any of its premises or by such service as
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catering . . . or counter service to the public.” 12 NYCRR § 146-3.1(b). While Wal-Mart may
not be a restaurant in the traditional sense, as Defendants contend, Plaintiff has alleged facts
plausibly suggesting that it is an establishment that offers restaurant concessions. See 12
NYCRR § 146-3.1(b) (“The term restaurant includes but is not limited to restaurant operations
of other types of establishments, restaurant concessions in any establishment and concessions in
restaurants.”) (emphasis added). Whether this claim will survive a motion for summary
judgment may be a different matter.
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss Plaintiff’s second cause of action in his
Second Amended Complaint for failure to state a claim (Dkt. No. 6) is DENIED; and is further
ORDERED that this case is referred back to Magistrate Judge Baxter for a Rule 16
conference and the setting of pretrial scheduling deadlines.
Dated: March 14, 2016
Syracuse, New York
_________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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