Ennocenti et al v. Unisys Technical Services LLC et al

Filing 31

ORDER denying 26 Motion to Dismiss for Failure to State a Claim. Signed by Hon. Michael A. Telesca on January 18, 2013. (MES)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
DAVID ENNOCENTI, JON STEWART, RICHARD
MANDELIK, ANTHONY FALSO, JR., TONI NOBLE
AND CHARLES TUTTY on behalf of themselves
and all other employees similarly situated,
Plaintiffs,
v.

12-CV-6367
DECISION AND ORDER

UNISYS TECHNICAL SERVICES, LLC,
AND THE UNISYS CORPORATION
Defendants,
________________________________________
INTRODUCTION
Plaintiffs, David Ennocenti, Jon Stewart, Richard Mandelik,
Anthony Falso, Jr., Toni Noble and Charles Tutty (“Plaintiffs”),
bring this class action on behalf of themselves and all other
employees similarly situated, pursuant to the Fair Labor Standards
Act, 29 U.S.C. § 201 et seq. (“FLSA”), New York State labor law
(“NYLL”), and Rule 23 of the Federal Rules of Civil Procedure.
(Docket No. 24.)

Plaintiffs allege that their employer, Unisys

Technical Services, LLC, a wholly owned subsidiary of The Unisys
Corporation,

(collectively,

“Defendants”),

failed

to

pay

all

regular and overtime wages due to Plaintiffs.
Defendants

move

to

dismiss

Plaintiffs’

amended

complaint

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
contending that Plaintiffs have not set forth a plausible claim to
relief. (Docket No. 26.) Plaintiffs oppose the motion. (Docket No.
27.) For the reasons discussed herein, Defendants’ motion to
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dismiss is denied.
BACKGROUND
The following facts are taken from the amended complaint.
(Docket No. 24.) Plaintiffs were employed by the Defendants in call
centers in New York and elsewhere. Plaintiffs allege that they
worked more than 40 hours per week and were not paid all regular
and overtime wages due.

They estimate that they were not paid for

approximately 25 to 90 minutes of compensable work time on a daily
basis throughout the duration of their employment.
Plaintiffs allege that they were required to perform the
following tasks before and/or after their scheduled shift: reading
“bulletin boards” which announced outages and account issues;
reviewing e-mail; running computer updates; reviewing software
explanations; reviewing trouble shooting techniques; bringing up
computer programs; reviewing scripts; checking open tickets and
tickets that were reassigned or required follow-up.

They also

allege that this work was performed before and/or after they were
logged onto Defendant’s phone system and that Defendants instructed
their employees to record only the time they were logged into the
phone system for compensation purposes.

Plaintiffs additionally

allege that they were required to take phone calls during lunch
breaks, but that Defendants automatically deducted an hour of time
for full time employees’ lunch breaks.
Plaintiffs

allege

that

Defendants

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knew

that

they

were

performing work for which they were not compensated because they
tracked the arrival and departure of employees though a swipe card
system.

Plaintiffs also allege that Defendants knew they were

performing work before and after they were logged into the phone
system, because Defendants required them to perform specific tasks
during this time but instructed Plaintiffs to only record the hours
they were logged into the phone system.
Finally,

Plaintiffs

allege

that

the

Defendants’

constitute willful violations of the FLSA and NYLL.

actions

They also

allege that it is Defendants’ policy to fail to pay their employees
regular and overtime wages.
DISCUSSION
Rule 8 of the Federal Rules of Civil Procedure does not
require heightened fact pleading, but merely requires the plaintiff
to “give the defendant fair notice of [plaintiff's] claim is and
the grounds upon which it rests.” See Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). In reviewing a motion to dismiss pursuant
to Rule 12(b)(6), the Court must accept the factual allegations set
forth in the complaint as true, and draw all reasonable inferences
in favor of the plaintiff. See ATSI Commc’ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir.2007); Cleveland v. Caplaw Enters.,
448 F.3d 518, 521 (2d Cir.2006).

The plaintiff must satisfy “a

flexible ‘plausibility standard.’” See Iqbal v. Hasty, 490 F.3d
143, 157 (2d Cir.2007). “[O]nce a claim has been stated adequately,

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it may be supported by showing any set of facts consistent with the
allegations in the complaint.” See Bell Atl. Corp. v. Twombly, 550
U.S. 544, 563 (2007). The Court, therefore, does not require
“heightened fact pleading of specifics, but only enough facts to
state a claim to relief that is plausible on its face.” See id. at
1974. “The issue is not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to support
the claims.” See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A
court’s belief or disbelief in a complaint’s factual allegations or
its belief that a “recovery is very remote and unlikely” does not
factor into a decision under Rule 12(b)(6). See id.
Plaintiffs’ Claims
A claim for failure to pay regular or overtime wages under the
FLSA requires that a plaintiff plead and prove “that he performed
work for which he was not properly compensated, and that the
employer had actual or constructive knowledge of that work.” Keubel
v.

Black

&

Decker

Inc.,

643

F.3d

352,

361

(2d

Cir.

2011).

Defendants argue that Plaintiffs’ allegations are conclusory and do
not satisfy the plausibility standard set forth above.
Plaintiffs allege that the Defendants required them to perform
certain, specified tasks before and after they were logged into the
phone system, and that they also instructed Plaintiffs to record
only those hours they were logged into the phone system for
compensation

purposes.

Plaintiffs

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allege

that

based

on

this

practice, they worked between 25 and 90 minutes each day for the
entirety of their employment for which they were not compensated.
Based on these allegations, the Court can infer that the Defendants
had actual or constructive knowledge that the Plaintiffs were
performing work for which they were not compensated because they
required worked to be performed while the Plaintiff’s were not
logged into the phone system and then instructed them not to record
those hours for compensation purposes. While not commenting on the
strength of the Plaintiffs’ case, the Court finds that these
allegations are sufficient to give Defendants fair notice of the
claims and the grounds on which they rest. See Hinterberger v.
Catholic Health, 2008 WL 5114258 (W.D.N.Y. 2008).
Defendants also contend that even if Plaintiffs adequately
stated

an

ordinary

violation

of

the

FLSA

and

NYLL,

their

allegations regarding a willful violation and their entitlement to
liquidated

damages

are

insufficient.

“An

employer

willfully

violates the FLSA when it either knew or showed reckless disregard
for the matter of whether its conduct was prohibited by the Act.”
Keubel, 643 F.3d at 366.

The standard for determining whether

liquidated damages are recoverable under NYLL “does not appreciably
differ from the FLSA’s willfulness standard.” Id. As stated above,
Plaintiffs allege that the Defendants required them to perform
certain specified tasks before and after they were logged into the
Defendants phone system and then instructed them to record only

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those hours for which they were logged into the phone system for
compensation.

These

facts,

while

minimal,

are

sufficient

to

plausibly allege that the Defendants knew that the Plaintiffs were
performing compensable work for which they were not being paid by
instructing them not to record this work for compensation.

The

Court finds that this is sufficient to plausibly allege a willful
violation of the statutes.
Accordingly, the Court finds that Plaintiffs have plausibly
alleged

their

claims

under

the

FLSA

and

NYLL.

Therefore,

Defendants’ motion to dismiss is denied.

ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
January 18, 2013

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