Petty v. Russell Cellular, Inc.

Filing 24

OPINION AND ORDER granting 7 Motion to Dismiss for Failure to State a Claim. Signed by Judge James L Graham on 1/30/2014. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Shelonda Petty,
Plaintiff,
v.

Case No. 2:13-cv-1110

Russell Cellular, Inc.,
Defendant.
OPINION AND ORDER
This is an action with class allegations filed by plaintiff
Shelonda Petty, asserting violations of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. §201, et seq. against her former employer,
Russell

Cellular,

Inc.

Count

One

of

the

complaint

alleges

violations of the FLSA overtime provisions, 29 U.S.C. §207(a)(1).
Count Two alleges that defendant violated the FLSA’s recordkeeping
requirements.

In Count Three, plaintiff seeks a declaratory

judgment, specifically, a declaration that she and other similarlysituated employees are entitled to be paid for the hours they
expend making required bank deposits after the end of their paid
shifts, and that defendant is required to maintain accurate and
complete records of such hours.
This matter is before the court on defendant’s partial motion
to dismiss Count Two of the complaint pursuant to Fed. R. Civ. P.
12(b)(6) for failure to state a claim for which relief may be
granted. In ruling on a motion to dismiss under Rule 12(b)(6), the
court must construe the complaint in a light most favorable to the
plaintiff, accept all well-pleaded allegations in the complaint as
true, and determine whether plaintiff undoubtedly can prove no set
of facts in support of those allegations that would entitle her to

relief.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir. 2008);
Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005).

To

survive a motion to dismiss, the “complaint must contain either
direct or inferential allegations with respect to all material
elements necessary to sustain a recovery under some viable legal
theory.”

Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).

Defendant argues that Count Two fails to state a claim for
relief because the FLSA’s recordkeeping requirements do not afford
a private cause of action.

Defendant is correct.

In Elwell v.

University Hospitals Home Care Services, 276 F.3d 832 (6th Cir.
2002), the Sixth Circuit held that 29 U.S.C. §216(b), the FLSA
provision which affords a private action against an employer for
unpaid overtime wages, “does not authorize employee suits for
violations of the FLSA’s recordkeeping requirements.”
843.

276 F.3d at

“Authority to enforce the Act’s recordkeeping provisions is

vested exclusively in the Secretary of Labor.”

Id. (citing 29

U.S.C. §217).
This court has also held that the FLSA does not authorize
employee suits for violations of the recordkeeping requirements of
29 U.S.C. §211(c).

See Millington v. Morrow County Bd. of Com’rs,

No. 2:06-cv-347, 2007 WL 2908817 at *13 (S.D.Ohio Oct. 4, 2007).
Other courts have reached the same conclusion. See, e.g., Lopez v.
Tri-State

Drywall,

Inc.,

861

F.Supp.2d

533,

537

(E.D.Pa.

2012)(there is no private right of action for FLSA recordkeeping
violations); Frisby v. Keith D. Weiner & Associates Co., LPA, 669
F.Supp.2d 863, 868 (N.D.Ohio 2009)(same); Cunningham v. Elec. Data
Sys. Corp., 579 F.Supp.2d 538, 542-43 (S.D.N.Y. 2008)(holding that

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“there is no private right of action to enforce” §211(c)); Barton
v. Pantry, Inc., no. 1:04CV748, 2006 WL 1367421 at *3 (M.D.N.C. May
17, 2006)(the FLSA “does not allow employees to bring actions,
either for civil penalties, damages, or injunctive relief, for
violations of the FLSA’s record-keeping provision.”); Twaddle v.
RKE Trucking Co., No. 2:04CV557, 2006 WL 840388 at *4 (S.D. Ohio
Mar. 28, 2006)(same); East v. Bullock’s Inc., 34 F.Supp.2d 1176,
1183 (D.Ariz. 1998)(Congress did not intend to provide a private
right to enforce the FLSA recordkeeping requirements).

Plaintiff

has cited no case which holds to the contrary.
Plaintiff opposes the partial motion to dismiss.

Plaintiff

attempts to distinguish the instant case from Millington, noting
this court’s statement in that case that there was “no evidence to
support plaintiff’s claims that the defendant failed in their
record-keeping responsibilities.”
*13.

Millington, 2007 WL 2908817 at

This court did not intend to suggest by that statement that

a claim for recordkeeping violations could have been presented to
the jury if plaintiff had presented evidence of recordkeeping
deficiencies.

Rather,

this

statement

simply

provided

an

alternative ground for granting summary judgment to the defendants,
even assuming, as plaintiff in that case argued, that a private
right of action to enforce the FLSA recordkeeping requirements was
available.
does

not

This court clearly held in Millington that “[t]he FLSA
authorize

employee

suits

for

violations

of

[the

recordkeeping] requirements” and that “insofar as plaintiff seeks
to assert a separate claim for failure to maintain records, such a
claim is not available.”

Id.

Plaintiff also argues that the Sixth Circuit’s holding in

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Elwell was dicta.

Elwell addressed the issue of whether the

district court erred in refusing to give a jury instruction which
would have allowed the jurors to calculate an award of back wages
applying a three-year statute of limitations, rather than a twoyear statute of limitations, if they found that the defendant was
reckless in failing to maintain required time records for its
employees.

This dicta argument was rejected by the court in

Frisby, which noted that the Sixth Circuit’s analysis of whether
the FLSA authorized employee suits for recordkeeping violations
“was central to the court’s refusal to permit a jury instruction on
the FLSA’s recordkeeping requirements.”
867-68.

Frisby, 669 F.Supp.2d at

As the court in Frisby noted, “[h]ad a private right of

action been available, the proposed instruction would have been
proper.” Id. at 868. The Sixth Circuit’s statement in Elwell that
§216(b) does not authorize employee suits for violations of the
FLSA’s recordkeeping requirements was not mere dicta.
Plaintiff then contends that Elwell “held that ‘an employer’s
recordkeeping practices’ may properly be introduced in an employee
action in conjunction with other actionable violations of the
FLSA.”

Doc.

18,

p.

6.

Plaintiff

argues

that

the

alleged

recordkeeping violation “is not a stand-alone claim in this case”
but instead “is coupled with an actionable claim for violations of
the

FLSA’s

overtime

requirement

...

as

well

as

a

claim

for

declaratory judgment.” Doc. 18, p. 6. Plaintiff states that while
“Elwell may limit the remedy employees may seek for a recordkeeping
violation, ... it does not prevent them from pleading and proving
the recordkeeping violation in conjunction with other actionable
claims.”

4

Plaintiff
recordkeeping

apparently
violations

seeks
as

a

to

preserve

claim,

the

contending

alleged
that

by

consolidating this claim with her overtime claim, both may be
presented to the jury.

This argument misapprehends the Sixth

Circuit’s observations in Elwell concerning the use of evidence of
recordkeeping violations to prove other FLSA violations. In regard
to the use of evidence of the failure to keep time records in
determining whether the employer acted willfully in failing to pay
overtime, the Sixth Circuit stated:
Although the FLSA does not permit an employee to bring a
private
action
for
recordkeeping
violations,
an
employer’s recordkeeping practices may nonetheless
corroborate an employee’s claims that the employer acted
willfully in failing to compensate for overtime. For
example, the fact that an employer knowingly underreported its employee’s work hours could suggest to a
jury that the employer was attempting to conceal its
failure to pay overtime from regulators, or was acting to
eliminate evidence that might later be used against it in
a suit by one of its employees. If so, this evidence
would make it more likely that the employer was aware of
a substantial risk that its activities violated the FLSA,
and acted in conscious disregard of that risk.
Elwell,

276

omitted).

F.3d

at

844

(internal

citations

and

quotations

However, the Sixth Circuit clearly held that counsel’s

argument that the jury could award an additional year of unpaid
overtime

if

it

found

defendant’s

violations

of

the

FLSA’s

recordkeeping provisions to be willful was “an incorrect statement
of law[.]”

Id. at 845.

In other words, recordkeeping violations

cannot be used to satisfy an element of an overtime violation,
although

evidence

of

those

recordkeeping

violations

may

be

admissible along with other evidence to show a willful overtime law
violation.

5

Plaintiff’s

factual

defendant

allegations
were

concerning

appropriately

recordkeeping

violations

by

complaint.

However, plaintiff’s complaint does not simply recite

evidence concerning recordkeeping violations.
Two,

the

complaint

asserts

recordkeeping law violations.

a

separate

included

Rather, in
claim

for

in

the

Count
alleged

Regardless of whether plaintiff’s

claim of recordkeeping violations is characterized as a stand-alone
claim (as suggested by the fact that it is labeled as a separate
count in the complaint, see Fed. R. Civ. P. 10(b)), or as a claim
“coupled with” or consolidated with her overtime claim in Count
One, no claim for recordkeeping violations is authorized under the
FLSA.

Likewise, the fact that plaintiff has requested declaratory

relief in Count Three of the complaint does not save her purported
recordkeeping claim; plaintiff cannot obtain declaratory relief on
a non-existent claim.
Defendant’s partial motion to dismiss Count Two (Doc. 7) is
granted.

This ruling should not be construed as precluding

plaintiff from offering evidence of recordkeeping violations by
defendant to the extent that such evidence is determined to be
relevant in proving a willful violation of the overtime laws.

Date: January 30, 2014

s/James L. Graham
James L. Graham
United States District Judge

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