MacIntyre et al v. Moore
DECISION AND ORDER granting 4 Motion to Dismiss, and granting 8 Plaintiffs leave to amend consistent with this Decision and Order. Plaintiffs may file an amended complaint within 30 days of the date of this Order. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 7/28/17. (JPL) (Copies of this Decision and Order have been mailed to Plaintiffs)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
STEPHEN R. MACINTYRE, and SCOTT E.
DECISION AND ORDER
6: l 5-CV-06660 EA W
JACK W. MOORE, Supervisor, Town of
Plaintiffs Stephen R. MacIntyre ("MacIntyre") and Scott E. Sullivan ("Sullivan")
( collectively, "Plaintiffs") commenced this action on October 30, 2015, alleging
violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), and the
Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. ("BRISA"). (Dkt.
The complaint names only one Defendant: Jack W. Moore ("Moore" or
"Defendant"), the Town Supervisor of the Town of Henrietta, New York. (Id. at 1).
Presently before the Court is Defendant's motion to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b)(6), (Dkt. 4), and Plaintiffs' cross-motion for leave to file
an amended complaint. (Dkt. 8). As discussed below, Plaintiffs have failed to plausibly
allege a claim under either the FLSA or BRISA. However, because Plaintiffs may be
able to plausibly allege a claim under the FLSA, they are granted leave to do so within
thirty days of the date of this Decision and Order.
Plaintiffs, former Engineering Inspectors for the Town of Henrietta, New York,
were terminated from their employment by Moore on January 23, 2015. (Dkt. 1 at 3).
Plaintiffs claim that they were misclassified as independent contractors, rather than town
employees. (Id. at 3). Plaintiffs assert that Defendant terminated them to avoid paying
Plaintiffs "a standard civil service wage and benefit entitlement and denied [Plaintiffs]
the opportunity to participate in the NYS State [sic] Retirement Program." (Id. at 4).
Plaintiffs claim that they are owed lost wages, overtime compensation, and unpaid
Defendant's Motion to Dismiss
In considering a motion to dismiss, a court generally may only consider "facts
stated in the complaint or documents attached to the complaint as exhibits or incorporated
by reference." Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). A
court should consider the motion "accepting all factual allegations in the complaint and
drawing all reasonable inferences in the plaintiff's favor." Ruotolo v. City of NY, 514
F.3d 184, 188 (2d Cir. 2008) (citation omitted). To withstand dismissal, a plaintiff must
set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). "'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."' Turkmen v. Ashcroft, 589 F.3d 542,
The facts here are those alleged in the complaint.
546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) ("The plausibility standard is not akin to
a probability requirement. A well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of the facts alleged is improbable, and that a recovery is
very remote and unlikely." (citations and internal quotation marks omitted)).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his
'entitlement to relief' requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555
(alteration and citations omitted).
Thus, "at a bare minimum, the operative standard
requires the 'plaintiff to provide the grounds upon which his claim rests through factual
allegations sufficient to raise a right to relief above the speculative level."' Goldstein v.
Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (alteration and citations omitted).
In addition, "[i]t is well settled that pro se litigants generally are entitled to a
liberal construction of their pleadings, which should be read to raise the strongest
arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001)
(internal quotation marks omitted).
Plaintiffs' FLSA Claim Must Be Dismissed
The Court Need Not Determine at this Time Whether a Public
Official Can Be Held Personally Liable Under the FLSA
Defendant first argues that he, as a public official, cannot be held personally liable
under the FLSA. (Dkt. 4-1 at 3-4).
The FLSA provides for a minimum hourly wage, 29 U.S.C. § 206(a), and requires
employers to pay overtime if an employee works more than 40 hours in a workweek. 29
U.S.C. § 207(a).
[T]he statute "defines the verb 'employ' expansively to mean 'suffer or
permit to work.'" Unfortunately, however, the statute's definition of
"employer" relies on the very word it seeks to define: '"Employer' includes
any person acting directly or indirectly in the interest of an employer in
relation to an employee." 29 U.S.C. § 203(d). The statute nowhere defines
"employer" in the first instance.
Irizarry v. Catsimatidis, 722 F.3d 99, 103 (2d Cir. 2013) (internal citation omitted).
Although the Second Circuit has repeatedly endorsed the notion that individuals
may be liable as employers under the FLSA, see id. at 117 (finding the chairman,
president, and chief executive officer of a private corporation individually liable as an
employer); Velez v. Sanchez, 693 F.3d 308, 331 (2d Cir. 2012) (finding an individual who
engaged a domestic servant in her household could be an employer under the FLSA);
Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 141 (2d Cir. 1999) (finding the chairman
of the board of directors of a company personally liable as an employer under the FLSA),
no Second Circuit case has determined whether a public sector official can be held
individually liable as an employer under the FLSA. 2 However, other Circuits are split on
The Court's research also has not identified any district court in this Circuit that
has interpreted the FLSA as imposing individual liability on a public sector official.
However, at least four district courts within the Second Circuit have recognized
individual liability against public employees under the Family Medical Leave Act, 29
U.S.C. §§ 2601, et seq. ("FMLA"). See, e.g., Tiffany v. N. Y. State Veteran's Home, No.
3:15-cv-0108 (MAD/DEP), 2015 WL 4460968, at * 11 (N.D.N.Y. July 21, 2015);
Santiago v. Dep't ofTransp., 50 F. Supp. 3d 136, 150-51 (D. Conn. 2014); Wanamaker v.
Westport Ed. of Educ., 899 F. Supp. 2d 193, 201-02 (D. Conn. 2012); Smith v.
Westchester Cty., 769 F. Supp. 2d 448, 476 (S.D.N.Y. 2011). These findings are relevant
the issue. Compare Mitchell v. Chapman, 343 F.3d 811, 832 (6th Cir. 2003) (noting that
the Sixth Circuit has "never extended individual liability to public employees under the
FLSA"), and Wascura v. Carver, 169 F.3d 683,686 (11th Cir. 1999) ("[T]he law of this
circuit [is] that a public official sued in his individual capacity is not an 'employer'
subject to individual liability under the FLSA.") with Haybarger v. Lawrence Cty. Adult
Prob. & Parole, 667 F.3d 408, 417 (3d Cir. 2012) ("[T]he FLSA explicitly provides that
an employer includes 'any person acting directly or indirectly in the interest of an
employer in relation to an employee and includes a public agency .... '" (citation
omitted) (emphasis original)); and Lee v. Coahoma Cty., Miss., 937 F.2d 220, 226 (5th
Cir. 1991) (finding a public official individually liable under the FLSA).
Resolution of this legal issue is unnecessary in this case, because, as described
below, even if Moore could be held personally liable under the FLSA, the complaint
lacks sufficient factual allegations from which the Court could find that Moore was an
The Complaint is Wholly Lacking in Factual Allegations as to
Moore's Status as an Employer
Courts apply an "economic reality" test to determine whether workers are
employees, and "whether managers or owners are employers." Irizarry, 722 F.3d at 104.
The test's four factors are "whether the alleged employer (1) had the power to hire and
fire the employees, (2) supervised and controlled employee work schedules or conditions
because "[i]n assessing individual liability under the FMLA, district courts within the
Second Circuit have applied the FLSA test of 'whether, as a matter of economic reality,
an entity is an employer for purposes of the FLSA' to the FMLA because the FMLA
definition of employer 'tracks that of the FLSA."' Smith, 769 F. Supp. 2d at 475.
of employment, (3) determined the rate and method of payment, and (4) maintained
employment records." Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984).
The Second Circuit requires a case-by-case analysis, reviewing the facts in the totality of
the circumstances. Irizarry, 722 F.3d 104.
Here, the complaint fails to plausibly allege sufficient factual allegations that
Moore was an employer under the FLSA. Plaintiffs' only allegations as to Moore are that
he is the Town Supervisor of Henrietta, and that he terminated their employment. (See
Dkt. 1 at 1, 3). There are no allegations that Moore supervised or controlled their work
schedules or conditions of employment, determined their pay, or maintained any
employment records. 3
(See Dkt. 1).
Plaintiffs' bare-bones allegations are patently
insufficient to state a claim for relief. 4 See Twombly, 550 U.S. at 570. As such, Plaintiffs
have failed to state a claim for relief. See, e.g., Tracy v. NVR, Inc., 667 F. Supp. 2d 244,
247 (W.D.N.Y. 2009) (finding that "mere boilerplate allegations that an individual meets
the various prongs of the economic reality test stated solely upon information and belief
and without any supporting details-essentially 'a formulaic recitation of the elements of
The attorney letter attached to the complaint, (Dkt. 1-1 ), asserts only that the Town
of Henrietta was Plaintiffs' employer. (See id.). Thus, it offers no additional allegations
as to Moore's status as an employer under the FLSA.
To the extent that Plaintiffs argue additional factual allegations in their opposition
papers (see Dkt. 11 at 2), the Court cannot refer to those additional factual allegations in
assessing the sufficiency of this complaint. In deciding a Rule l 2(b )( 6) motion, the Court
is generally limited to reviewing "the allegations contained within the four comers of [the
plaintiffs] complaint." Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir.
1998); see, e.g., Friedl v. City of NY, 210 F.3d 79, 83-84 (2d Cir. 2000) (finding that a
district court errs if, in deciding a Rule l 2(b )( 6) motion, it "relies on factual allegations
contained in legal briefs or memoranda.").
a cause of action'-are insufficient to raise [the] plaintiffs' right to relief 'above a
speculative level' with respect to that individual's liability as an employer under the
FLSA" (quoting Twombly, 550 U.S. at 555)). Therefore, Plaintiffs' FLSA claim against
Moore must be dismissed.
However, because a prose complaint must be read broadly, "the court should not
dismiss without granting leave to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be stated." Gomez v. USAA. Fed.
Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999). An amendment is afforded "unless the
court can rule out any possibility, however unlikely it might be, that an amended
complaint would succeed in stating a claim." Id.; see, e.g., Akande v. US. Marshals
Serv., 13-4629, 2016 WL 4543542, at *3 (2d Cir. Aug. 31, 2016) ("We therefore cannot
conclude with confidence that [the plaintiff] cannot plausibly allege a viable cause of
action. Accordingly, ... [the plaintiff should] be given one more opportunity to amend
his complaint to better articulate the facts he alleges and the legal bases for his claims.").
Plaintiffs may be able to establish an FLSA claim against Moore. Under a liberal
reading of the complaint, Plaintiffs raise a plausible claim under the overtime regulations
of the FLSA. (See Dkt. 1). "To survive a motion to dismiss, Plaintiffs must allege
sufficient factual matter to state a plausible claim that they worked compensable overtime
in a workweek longer than 40 hours." Lundy v. Catholic Health Sys. of Long Island Inc.,
711 F.3d 106, 114 (2d Cir. 2013).
Although the complaint itself lacks the factual
foundation to state a claim of unpaid overtime, the exhibit attached to the complaint
satisfies this requirement. (See Dkt. 1-1); see also Roth, 489 F.3d at 509 ("Documents
that are attached to the complaint or incorporated in it by reference are deemed part of the
pleading and may be considered [in ruling on a Rule 12(b)(6) motion]."). In the exhibit,
Plaintiffs provide factual allegations that MacIntyre was not paid for a total of 76 hours
of overtime between 2012 and 2014, and Sullivan was not paid overtime for a total of 48
hours in 2013 and 2014. (Dkt. 1-1 at 4-5). Therefore, Plaintiffs' substantive allegations
as to unpaid overtime wages are sufficient. And, if Plaintiffs alleged sufficient factual
information to satisfy the Carter test, Plaintiffs would plausibly state a claim for relief
against Moore under the FLSA overtime regulations. As such, they are granted leave to
amend the complaint to include sufficient facts, if applicable, to allege that Moore was an
employer under the FLSA.
Plaintiffs' ERISA Claim Must be Dismissed
Plaintiffs also seek payment for benefits under the New York State Retirement
Program. (Dkt. 1 at 4). Defendant argues that BRISA does not apply to the plan at issue,
(Dkt. 4-1 at 11-12), and, in fact, in their response, "Plaintiffs concede that BRISA is not
the proper venue for the claims involving benefits recovery." (Dkt. 11 at 3).
BRISA was enacted because "Congress found it desirable that 'disclosure be made
and safeguards be provided with respect to the establishment, operation, and
administration of [employee benefit] plans,"' Fort Halifax Packing Co. v. Coyne, 482
U.S. 1, 15 (1987) (quoting 29 U.S.C. § lOOl(a)), and to ensure "uniformity of regulation
with respect to [these plans'] activities." Id. (quoting H.R. Rep. No. 94-1785, p. 46
(1977)). BRISA regulates both employee welfare benefit plans and pension benefit plans.
See NY State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins., 514 U.S. 645,
650 (1995); see also 29 U.S.C. § 1002(1)-(3).
The ERJSA statute defines "employee welfare benefit plan" as:
[A ]ny plan, fund, or program which was heretofore or is hereafter
established or maintained by an employer or by an employee organization,
or by both, to the extent that such plan, fund, or program was established or
is maintained for the purpose of providing for its participants or their
beneficiaries, through the purchase of insurance or otherwise, (A) medical,
surgical, or hospital care or benefits, or benefits in the event of sickness,
accident, disability, death or unemployment, or vacation benefits,
apprenticeship or other training programs, or day care centers, scholarship
funds, or prepaid legal services, or (B) any benefit described in section
186( c) of this title ( other than pensions on retirement or death, and
insurance to provide such pensions).
29 U.S.C. § 1002(1). However, "governmental plan[s]" are exempt from the dictates of
ERJSA. Id. § 1003(b)(l); see, e.g., Roy v. Teachers Ins. & Annuity Ass 'n, 878 F.2d 47,
49 (2d Cir. 1989) ("While ERJSA was under consideration, some thought was given
toward applying it to public sector employee benefit plans. Mindful of the principles of
federalism, however, Congress opted to remove such plans from ERJSA's scope."
(internal citation omitted)). A governmental plan is one that is "established or maintained
for its employees ... by the government of any State or political subdivision thereof, or
by any agency or instrumentality of any of the foregoing."
29 U.S.C. § 1002(32).
"[W]hen a pension plan has been established by a governmental entity for its
employees ... the plan must be exempt from ERJSA as a governmental plan." Roy, 878
F.2d at 50.
"To state a claim under ERJSA, a plaintiff must allege and establish the existence
of an 'employee benefit plan' that is governed by ERJSA."
Timian v. Johnson &
Johnson, No. 6:15-cv-06125(MAT), 2015 WL 6454766, at *3 (W.D.N.Y. Oct. 26, 2015).
Here, Plaintiffs seek payment under ERISA for being denied the opportunity to
participate in the New York State Retirement Plan through the Town of Henrietta, New
York. (Dkt. 1 at 4). According to these allegations, the plan at issue is a governmental
plan under ERISA because the plan is "established or maintained for its employees ... by
the government" of New York state and/or the Town of Henrietta, a political subdivision
of New York state. See 29 U.S.C. § 1002(32). Because Plaintiffs have not alleged the
existence of any employee benefit plan which is governed by ERISA, they have failed to
state a claim, and their ERISA claim must be dismissed. Plaintiffs are not granted leave
to amend this claim because any such amendment would be futile.
Plaintiffs are Granted Leave to Amend
Federal Rule of Civil Procedure 15 provides that the Court "should freely give
leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). Nevertheless, "it is
within the sound discretion of the district court to grant or deny leave to amend."
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). "A district
court has discretion to deny leave for good reason, including futility, bad faith, undue
delay, or undue prejudice to the opposing party." Id. Here, Plaintiffs seek leave to add
the Town of Henrietta as a defendant in this action. (Dkt. 8). Defendants oppose the
amendment because Plaintiffs failed to comply with the Local Rules of Civil Procedure,
and on the grounds of futility. (Dkt. 13 at 3-6).
Pursuant to this District's Local Rules:
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[a] movant seeking to amend or supplement a pleading must attach an
unsigned copy of the proposed amended pleading as an exhibit to the
motion. The proposed amended pleading must be a complete pleading
superseding the original pleading in all respects. No portion of the prior
pleading shall be incorporated into the proposed amended pleading by
L.R. Civ. P. 15(a).
Here, Plaintiffs have failed to comply with Local Rule 15. They did not attach an
unsigned copy of the proposed amended complaint as an exhibit to their motion. (Dkt.
8). However, the Court is required to read pro se filings liberally, and to grant motions
for leave to amend where the interests of justice so require. Because Plaintiffs may be
able to assert a plausible FLSA claim against the Town of Henrietta and/or Moore, they
are granted leave to do so. Indeed, the Court would grant leave to amend regardless of
whether Plaintiffs had filed a cross-motion seeking permission to do so, thus rendering
the failure to comply with the District's Local Rules largely irrelevant.
Plaintiffs may file their amended complaint with 30 days of the date of this
Plaintiffs are advised that the amended complaint is intended to completely
replace the complaint. See Int'! Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir.
1997) ("[ A ]n amended complaint ordinarily supersedes the original and renders it of no
legal effect."). Plaintiffs' amended complaint must name all defendants, include all of
Plaintiffs' allegations, and attach any exhibits Plaintiffs seek to include, so that the
amended complaint may stand on its own as the operative pleading in this matter.
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For the foregoing reasons, Defendant's motion to dismiss (Dkt. 4) is granted, but
Plaintiffs are granted leave to amend (Dkt. 8) consistent with this Decision and Order.
Dated: July 28, 2017
Rochester, New York
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