Wilder v. New Albany Health Associates MSO, LLC et al
Filing
21
OPINION AND ORDER granting 13 Motion for Leave to File First Amended Complaint. Signed by Magistrate Judge Norah McCann King on 9/8/2015. (pes)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RODNEY L. WILDER,
Plaintiff,
vs.
Civil Action 2:15-cv-1423
Judge Frost
Magistrate Judge King
NEW ALBANY HEALTH ASSOCIATES
MSO, LLC, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff Rodney L. Wilder’s
Motion for Leave to File First Amended Complaint, ECF 13 (“Motion to
Amend”); Defendants’ Brief in Opposition to Plaintiff’s Motion for
Leave to File First Amended Complaint, ECF 19 (“Opposition”); and
Plaintiff Rodney L. Wilder’s Reply in Support of His Motion for Leave
to File First Amended Complaint, ECF 20 (“Reply”).
For the reasons
that follow, the Motion to Amend is GRANTED.
I.
BACKGROUND
Plaintiff began working for defendants as a construction labor
worker in approximately August 26, 2013.
Complaint, ECF 1, ¶ 14.
Defendants, comprised of two individuals, two Ohio corporations, and
an Ohio limited liability company, hired plaintiff to perform labor
and construction work on defendants’ real estate and personal
properties within, and outside, the State of Ohio.
21.
Id. at ¶¶ 5-9, 20-
Plaintiff’s job duties included installing drywall, painting,
installing plumbing equipment, structural improvements, electrical
1
improvements and troubleshooting, landscaping, general maintenance,
and other labor-intensive construction work.
Id. at ¶ 19.
When
plaintiff attempted to maintain his time records, defendants
questioned why he was keeping track of his work hours and instructed
plaintiff to stop doing so, telling him that he was a “salaried
professional.”
Id. at ¶¶ 26-28.
Plaintiff asked why defendants did
not pay him for overtime when they required him to work more than 40
hours per week.
Id. at ¶¶ 29-30.
Plaintiff further advised
defendants that he believed that he was entitled to overtime pay
because his work consisted primarily of physical labor.
Id. at ¶ 30.
“Almost immediately thereafter, Defendants terminated Plaintiff” on or
about August 22, 2014.
Id. at ¶¶ 14, 31.
On April 23, 2015, plaintiff instituted this action under the
Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), and O.R.C.
§ 4111.01 et seq., for recovery of overtime compensation allegedly
due.
See Complaint.
Plaintiff also asserts a claim of retaliation in
violation of 29 U.S.C. § 215, alleging that defendants terminated his
employment when he engaged in the protected activity of advising
defendants that they had misclassified him and failed to give him the
required overtime pay.
Id. at ¶¶ 50-56.
On June 26, 2015, defendant
Richard K. Cavender, MD, Inc. (“the Company”) asserted counterclaims
of conversion and unjust enrichment, seeking recovery in connection
with the allegedly unauthorized use of the Company credit card and
van.
Defendant Richard K. Cavender, MD, Inc.’s Counterclaims Against
Plaintiff, ECF 9.
2
Plaintiff filed the Motion to Amend on July 30, 2015, seeking to
add a retaliation claim based on the Company’s counterclaims, which
were allegedly asserted in bad faith.
Following a preliminary
pretrial conference conducted pursuant to the provisions of Fed. R.
Civ. P. 16(b), the Court issued an order noting that plaintiff had
moved for leave to amend and directed that the motion be briefed
within rule.
Preliminary Pretrial Order, ECF 15, p. 1.
The Motion to
Amend is now ripe for resolution.
II.
STANDARD
Rule 15(a) of the Federal Rules of Civil Procedure provides that
“[t]he court should freely give leave [to amend] when justice so
requires.”
Fed. R. Civ. P. 15(a)(2).
Rule 15 reinforces “the
principle that cases ‘should be tried on their merits rather than the
technicalities of the pleadings.’”
Moore v. City of Paducah, 790 F.2d
557, 559 (6th Cir. 1986) (quoting Tefft v. Seward, 689 F.2d 637, 639
(6th Cir. 1982)).
The grant or denial of a request to amend a
complaint is left to the broad discretion of the trial court.
Gen.
Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990).
“In
deciding whether to grant a motion to amend, courts should consider
undue delay in filing, lack of notice to the opposing party, bad faith
by the moving party, repeated failure to cure deficiencies by previous
amendments, undue prejudice to the opposing party, and futility of
amendment.”
Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996,
1001 (6th Cir. 2005) (citing Coe v. Bell, 161 F.3d 320, 341-42 (6th
Cir. 1998)).
3
“A proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.”
Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing
Thiokol Corp. v. Dep’t of Treasury, Revenue Div., 987 F.2d 376, 382-83
(6th Cir. 1993)).
“To survive a motion to dismiss, a [claim] must
contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic 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.”
Id. (citing Bell Atlantic Corp., 550 U.S. at 556).
III. DISCUSSION
Plaintiff has moved for leave to amend the Complaint in order to
add a retaliation claim based on the Company’s counterclaims, which
are alleged to have been asserted in bad faith.
to Amend.
See generally Motion
By way of background, the anti-retaliation provision of the
FLSA prohibits an employer from “discharg[ing] or in any other manner
discriminat[ing] against any employee because such employee has filed
any complaint or instituted or caused to be instituted any proceeding
under or related to” the FLSA.
29 U.S.C. § 215(a)(3).
In order to
establish a prima facie case of retaliation, an employee must prove
that
(1) he or she engaged in a protected activity under the
FLSA; (2) his or her exercise of this right was known by
the employer; (3) thereafter, the employer took an
employment action adverse to her; and (4) there was a
4
causal connection between the protected activity and the
adverse employment action.
Adair v. Charter County of Wayne, 452 F.3d 482, 489 (6th Cir. 2006)
(citing Williams v. Gen. Motors Corp., 187 F.3d 553, 568 (6th Cir.
1999)).
In the case presently before the Court, plaintiff contends that
filing a baseless counterclaim that was brought for a retaliatory
motive constitutes an adverse employment action.
Motion to Amend, p.
4 (citing Ramos v. Hoyle, No. 08-21809, 2009 U.S. Dist. LEXIS 61062
(S.D. Fla. July 16, 2009)).
Plaintiff goes on to contend that
district courts in this circuit and across the country “have
recognized a cause of action for retaliation when an employer brings a
bad faith counterclaim against its former employee.”
Id. at 5
(collecting cases).
Defendants, however, argue that the grant of the Motion to Amend
would be futile because the proposed claim fails to allege factual
allegations sufficient to establish the third and fourth elements of a
prima facie FLSA retaliation claim (i.e., adverse employment action
and causal connection, respectively).
Opposition, pp. 6-14.
As to
the third element, defendants first argue that plaintiff cites to no
controlling or persuasive authority that a counterclaim can constitute
an adverse employment action.
plaintiff’s other cited cases).
Id. at 6-9 (distinguishing Ramos and
Defendants also point out that,
because plaintiff was no longer employed at the time that the
counterclaims were asserted, the assertion of those counterclaims
cannot be characterized as “an adverse employment action.” Id. at 9-10
5
(citing Adair, 452 F.3d at 489).
Defendants also contend that
plaintiff cannot establish the fourth element of his prima facie case,
(i.e., a causal connection), where plaintiff bases his claim on simply
the timing of the filing of the counterclaims and conclusory
statements.
Id. at 10-11 (explaining, inter alia, that defendants
necessarily filed the counterclaims after plaintiff filed the
Complaint).
Defendants go on to argue that, even if this Court
concludes that plaintiff has sufficiently alleged an adverse
employment action, plaintiff cannot establish that the counterclaims
are baseless, which is required to support a FLSA retaliation claim.
Id. at 12-14.
Defendants explain that defendants have submitted
credit card documentation that reflect plaintiff’s unauthorized credit
card charges and which supports the Company’s counterclaims.
Id. at
14 (citing Exhibit A, attached thereto).
Plaintiff concedes in reply that he is unaware of any Sixth
Circuit authority that specifically answers whether filing a baseless,
retaliatory claim constitutes an adverse employment action in the FLSA
context, but he notes that defendants have cited to no binding Sixth
Circuit authority holding that a baseless, retaliatory counterclaim
does not constitute an adverse employment action under the FLSA.
at 2-3.
Id.
Plaintiff points out that this Court, and other district
courts within this circuit, “have held that a baseless and retaliatory
counterclaim may constitute an adverse employment action under a Title
VII retaliation claim.”
Id. at 3-4 (collecting cases and explaining
further that the Sixth Circuit has applied the standard of what
6
constitutes an “adverse employment action” under a Title VII
retaliation claim to FLSA retaliation claims).
Plaintiff further
argues that this Court has already held that retaliatory actions need
not be employment related and that the filing of a counterclaim can be
sufficiently adverse to constitute retaliation.
Id. at 4 (citing
Gliatta v. Tectum Inc., 211 F. Supp. 2d 992, 1008-09 (S.D. Ohio
2002)).
Plaintiff contends that he has sufficiently established a
causal connection, noting, inter alia, that defendant did not demand
that allegedly unauthorized purchases cease or that Company property
be returned prior to the filing of the Complaint.
Id. at 4-5.
To the
extent that plaintiff’s allegations conflict with defendants’
assertions, plaintiff contends that the Court, at this stage, must
accept his allegations as true.
Id. at 5.
Finally, plaintiff argues
that defendants’ proffered credit card statements simply show that
defendants provided plaintiff with a credit card and that he made
purchases with that card.
Id. at 5-6.
Plaintiff’s proffered First
Amended Complaint alleges that defendants authorized all of
plaintiff’s purchases and that the purchases were job-related.
Id. at
6 (citing proposed First Amended Complaint, ¶¶ 63-66, attached to
Motion to Amend as Exhibit A).
Plaintiff’s arguments are well-taken.
After considering the
proposed amendment and the arguments of the parties, the Court cannot
say at this stage of the proceedings that plaintiff is unable to prove
any set of facts that would entitle him to relief on his proposed
retaliation claim.
See Fed. R. Civ. P. 12(b)(6); Rose, 203 F.3d at
7
420.
Where the proposed amendment is plausible on its face and where
there exist substantial arguments on whether or not plaintiff will
ultimately prevail on the new claim, the amendment should be
permitted.
See, e.g., Lauren v. PNC Bank, N.A., No. 2:14-cv-0230,
2014 U.S. Dist. LEXIS 64945, at *9 (S.D. Ohio May 12, 2014) (“At least
where the claim is arguably sufficient, it is usually a sound exercise
of discretion to permit the claim to be pleaded and to allow the
merits of the claim to be tested before the District Judge by way of a
motion to dismiss.”).
Whether or not plaintiff will ultimately
prevail on his claims is not before the Court at this juncture and is
better left for resolution at a later stage of the proceedings.
Under all these circumstances, the Court concludes that its
discretion is better exercised by granting the Motion to Amend.
WHEREUPON, Plaintiff Rodney L. Wilder’s Motion for Leave to File
First Amended Complaint, ECF 13, is GRANTED.
The Clerk is DIRECTED to
file the First Amended Complaint, which is attached as Exhibit A to
plaintiff’s motion.
September 8, 2015
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?