CHILDS v. UNIVERSAL COMPANIES
MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION TO DISMISS IS DENIED; ETC.. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 4/22/16. 4/22/16 ENTERED AND E-MAILED.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MEMORANDUM RE: DEFENDANT’S MOTION TO DISMISS
In this emplo yment case, Defendant Universal Companies filed a Motion
to Dismiss one of two counts for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). For the reasons below, the Motion to Dismiss is
Accepting the facts in the Second Amended Complaint as true, Plaintiff
Maurice Childs was emplo yed b y Defendant Universal Companies (“Universal”)
as a building engineer beginning in August 2012. Universal’s propert y had eight
buildings, each of which housed an academic institution specializing in various
subjects. As a building engineer, Mr. Childs was responsible for maintaining a
specific building on Universal’s propert y. When Mr. Childs was required to
work more than fort y hours per week, he was paid overtime.
In May 2013, Mr. Childs was promoted to head engineer. This position
required him to maintain the s ystems of all eight buildings. When he was
promoted, Mr. Childs was told that an engineer and a maintenance technician
would be hired for each of the buildings to assist Mr. Childs, but no one was
ever hired. Thus, Mr. Childs did not have any control over any Universal
Plaintiff’s supervisor was Ms. Tamelia Hinson, who was also the daughter
of Universal’s CEO. On a dail y basis, Ms. Hinson would inform Mr. Childs of
an y maintenance that needed to be performed. She was also in charge of his
hours. If Mr. Childs believed that maintenance was required beyond that which
Ms. Hinson requested him to perform, he had to get approval to perform such
maintenance from Ms. Hinson.
After Mr. Childs was promoted, Ms. Hinson informed him that he would
no longer be eligible for overtime pay because his hourl y wage was too high and
granting him overtime would take available funds away from other team
members. She reiterated his ineligibilit y for overtime on multiple occasions.
When Mr. Childs’ responsibilities required him to work more than fort y hours
per week, Ms. Hinson would change his time cards to prevent him from
receiving overtime pay. Additionall y, Mr. Childs alleges that he was required to
work without compensation every Sunday from December 2014 until his
termination in April 2015.
In December 2013, Mr. Childs received an email from Ms. Hinson
informing him that his hours were 6am until 2:30pm and he was not to receive
any overtime. Mr. Childs responded by explaining that he had to stay past
2:30pm in order to complete his tasks because he was the only engineer. If he
actuall y left at 2:30pm, he would get in trouble for not doing his job.
Around September 2014, Mr. Childs made an internal complaint to his
Human Resources (“HR”) Representative, Stephanie Braddocks. Mr. Childs
explained that he needed to work more than fort y hours per week to complete
his duties and informed Ms. Braddocks that Ms. Hinson altered his time cards
when he worked more than fort y hours per week. Ms. Braddocks told Mr. Childs
that, in order to keep his job, he needed to do what Ms. Hinson said, which
included clocking out at the required time and staying late to finish his work
Mr. Childs alleges that, to brand him as a bad employee, Universal
harassed him b y issuing frivolous write-ups during 2014: Around June 2014, he
was written-up for helping a maintenance technician complete a task. In
November 2014, he was written-up when a building was too cold on a Monday
morning, despite the fact that he was prohibited from working Sundays to heat
the buildings. A similar cold-building write-up occurred in December 2014.
Mr. Childs was terminated in April 2015 following two incidents. First,
on April 20, 2015, Mr. Childs called Ms. Hinson and left her a voicemail telling
her that he was sick and could not come in that day. Second, a few days later, he
emailed Ms. Hinson and Ms. Braddocks once again to complain about his
overtime and payroll. Ms. Hinson said she would arrange a meeting to discuss
the issue on April 27, 2015.
On April 27, 2015, Mr. Childs received a call from Human Resources
directing him to go to the Corporate Building. When he arrived, he was handed
his termination notice. He was told that the basis for his termination were that
(1) on April 17, 2015 Ms. Hinson could not locate Mr. Childs during his shift
and determined that he had abandoned his job and (2) Mr. Childs did not show
up for work on April 20, 2015. As to the first ground, Plaintiff explained that he
did not abandon his job. His job required him to frequentl y move between
buildings, so he was often difficult to physicall y locate, but he could always be
reached b y phone. As to the second ground, Mr. Childs had called-in sick on
In the Original Complaint, Mr. Childs brought onl y one count: Retaliation
in Violation of the Fair Labor Standards Act (“FLSA”). (ECF 1) Universal filed
a Motion to Dismiss (ECF 7), and shortl y thereafter, Mr. Childs filed a Second
Amended Complaint as of right, adding a new count for Violation of the FLSA.
(ECF 8) Universal filed a new Motion to Dismiss. (ECF 10)
Mr. Childs filed a Second Amended Complaint without leave of Court,
and the Court issued an Order sua sponte requiring Mr. Childs to either obtain a
stipulation from the Defendant to allow him to file a Second Amended
Complaint or file a Motion seeking leave to amend. (ECF 13) Mr. Childs did the
latter, and the Court granted the Motion. (ECF 15)
Universal then filed the instant Motion to Dismiss. (ECF 17). Plaintiff
responded (ECF 19). Universal did not file a Repl y.
In considering a motion to dismiss under Rule 12(b)(6), the Court
“accept[s] all factual allegations as true [and] construe[s] the complaint in the
light most favorable to the plaintiff.” Warren Gen. Hosp. v. Amgen, Inc., 643
F.3d 77, 84 (3d Cir. 2011) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d
361, 374 n.7 (3d Cir. 2002)). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim for relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In the instant motion, Universal moves to dismiss onl y Mr. Child’s FLSA
retaliation claim (Count II).
Relevant to this case, the FLSA prohibits a compan y from taking adverse
action against an emplo yee “because such employee has filed any complaint . . .
under or related to this chapter.” 29 U.S.C. § 215(a)(3). To successfull y plead
that Universal retaliated in violation of the FLSA, Mr. Childs must allege:
1. He participated in a statutoril y protected activit y (e.g., filing a
2. Universal took adverse emplo yment action against him.
3. There is a causal connection between Mr. Childs’ protected activit y
and Universal’s termination of Mr. Childs.
Mackereth v. Kooma, Inc., No. 14-cv-4824, 2015 WL 2337273, *11 (E.D. Pa.
May 14, 2015). The McDonald-Douglas burden-shifting scheme applies.
Cononie v. Allegheny Gen. Hosp., 29 Fed. App’x 94, 95 (3d Cir. 2002)
The sole issue in this Motion to Dismiss is whether any of Mr. Childs’
communications to his supervisor and HR can qualify as “complaints” under the
FLSA. The FLSA does not define complaint.
The onl y binding precedent on what constitutes a complaint comes from
Kasten v. Saint-Gobain Perf. Plastics Corp., 563 U.S. 1 (2011). There, the
Supreme Court held that for a plaintiff “to fall within the scope of the
antiretaliation provision, a complaint must be sufficientl y clear and detailed for
a reasonable emplo yer to understand it, in light of both content and context, as
an assertion of rights protected by the statute and a call for their protection.” Id.
at 14. In the same decision, the Court held that this “standard can be met . . . b y
oral complaints, as well as by written ones.” Id.
Universal attacks Mr. Childs’ Second Amended Complaint on onl y one
ground, arguing that Mr. Childs has failed to allege that he ever made a
“complaint” as that term is defined in the FLSA. Universal does not make an y
In support of its “complaint” argument, Universal relies chiefl y on
Montgomery v. Havner, 700 F.3d 1146 (8th Cir. 2012). Montgomery involved a
dispute between a paralegal and an office manager at a law firm, where the
office manager was the named partner’s wife. Id. at 1148. At 4:55 one
afternoon, the office manager told the paralegal and two other employees that
they could all leave for the day and that the office manager would clock them
out. Id. Later that evening, the paralegal learned that she had been clocked out
at 4:45, but the other two employees were correctl y clocked out at 4:55. Id. The
paralegal called the office manager to ask why she had clocked-out the paralegal
earlier than the two other employees. This phone call ended amicabl y, with the
office manager agreeing to adjust the paralegal’s clock-out time. Id. The office
manager called the paralegal back shortl y thereafter, and the two got into a
heated argument about a different office issue related to another employee’s
break times. Id. After this call, the named partner called the paralegal and
terminated her employment. Id.
Based on these facts, the district court granted the defendants’ motion to
dismiss the complaint. On appeal, the Eighth Circuit affirmed, reasoning that
“[n]o reasonable jury could conclude [the paralegal’s] discussion with [the
office manager] about the ten-minute deduction was a sufficientl y clear and
detailed FLSA complaint for the [defendants] reasonabl y to understand [the
paralegal] was alleging an FLSA violation.” Id. at 1149.
Mr. Childs claims that he engaged in protected activit y when he
complained to Ms. Hinson regarding (1) nonpayment of overtime from
November 2013 through his termination and (2) Ms. Hinson’s alteration of his
timecards to prevent him from receiving overtime compensation for the hours he
had worked. He also avers that he engaged in protected activity when he
complained to Ms. Braddocks about the same behavior.
In support of his arguments that these communications should qualify as
FLSA “complaints” for the purpose of the anti-retaliation provision of the
FLSA, Mr. Childs relies on Chennsi v. Comm’ns Const. Grp., LLC, No. 4-cv4826, 2005 WL 387594, at *2-3 (E.D. Pa. Feb. 17, 2005). In Chennsi, the
plaintiff raised concerns with his employer that the employer had failed to pay
him overtime in accordance with the FLSA. Id. at *1.The employer and the
plaintiff subsequently entered into a settlement agreement in which the plaintiff
agreed to release the emplo yer from all then-existing claims, and the employer
agreed to pay the plaintiff approximatel y $8,000. Id. Approximatel y two months
after the parties entered a settlement agreement, the employer fired the plaintiff.
At no time prior to his termination did the emplo yee file a formal complaint or
institute an y FLSA proceedings. Id.
After being terminated, the employee brought an FLSA anti-retaliation
claim. Id. The employer-defendant filed a Rule 12(b)(6) motion, arguing that the
plaintiff-emplo yee did not file a “complaint” within the meaning of the FLSA
anti-retaliation provision because the employee never filed a formal complaint
or instituted an y proceeding under the FLSA. Id. at *1-2. The district court
denied the motion upon determining that a formal complaint is not required to
invoke the protection of the FLSA anti-retaliation provision. Id. at *3. The
district court reached this decision in light of the Third Circuit’s prior holding
that the FLSA anti-retaliation provision should be read liberally. Id. at *2
(citing Brock v. Richardson, 812 F.2d 121 (3d Cir. 1987)).
Evaluation of the Arguments
Third Circuit and Supreme Court precedent, although not directl y on
point, indicate a preference for a liberal interpretation of the word “complaint”
in the FLSA’s anti-retaliation provision.
As mentioned earlier, in 2011 the Supreme Court held that an employee
satisfies the protected activit y requirement of the FLSA anti-retaliation statute
if the emplo yee’s complaint is “sufficientl y clear and detailed for a reasonable
emplo yer to understand it, in light of both content and context, as an assertion
of rights protected by the statute and a call for their protection.” Kasten v.
Saint-Gobain Perf. Plastics Corp., 563 U.S. 1, 14 (2011). Accepting the
allegations in the Second Amended Complaint as true, the Court finds that a
reasonable jury could find that Mr. Childs’ complaints to Ms. Hinson and
Ms. Braddocks were sufficientl y clear assertions of rights protected by the
FLSA. Although Mr. Childs did not specificall y refer to the FLSA when making
his complaints, given the context and the content of his complaints, a reasonable
employer would have understood that Mr. Childs was asserting rights protected
b y the FLSA.
Third Circuit precedent, although not directl y on point, also supports
today’s ruling. In Brock v. Richardson, the defendant-employer mistakenl y
believed that the plaintiff-employee had reported an FLSA violation to the Wage
and Hour Division of the Department of Labor. Brock v. Richardson, 812 F.2d
121, 122 (3d Cir. 1987). In a bench trial, the district court found that the
emplo yer’s mistaken belief in this fact caused the employee to be fired, and the
court awarded judgment to the employee on this basis. Id. at 123.
On appeal, the defendant-employer argued that the FLSA anti-retaliation
provision should not appl y because the employee did not actuall y make a
complaint, rather, the emplo yer onl y believed that the employee had made a
complaint. Id. at 123. The Third Circuit rejected this argument. The court
emphasized that emplo yee reporting is the primary enforcement mechanism of
the FLSA. Id. at 124 (citing Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S.
288, 292 (1960)). The Third Circuit gleaned that “the key to interpreting the
anti-retaliation provision is the need to prevent employees’ ‘fear of economic
retaliation’ for voicing grievances about substandard conditions.” Id. at 124
(quoting Mitchell, 361 U.S. at 292).Thus, the court indicated that when “the
emplo yee’s activities [are] considered necessary to the effective assertion of
employees’ rights under the Fair Labor Standards Act,” then those activities are
“entitled to protection.” Id. at 124.
Appl ying this Third Circuit standard, the Court concludes that a jury
could find that Mr. Childs’ reports to his supervisors regarding the non-payment
of his overtime were necessary to the effective assertion of employees’ rights
under the FLSA. “The [FLSA] seeks to prohibit ‘labor conditions detrimental to
the maintenance of the minimum standard of living necessary for health,
efficiency, and general well-being of workers.” Kasten v. Saint-Gobain Perf.
Plastics. Corp., 563 U.S. 1, 11 (2011) (quoting 29 U.S.C. § 202(a)). “It relies
for enforcement of these standards . . . upon ‘information and complaints
received from employees seeking to vindicate rights claims to have been
denied.’” Id. at 11 (quoting Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S.
288, 292 (1960)).
And finall y, on a practical note, if the FLSA’s anti-retaliation provision
did not appl y, then an emplo yer could fire without recourse any employees who
complained to their supervisors about the employer refusing to pay legall y
required overtime wages. This was surel y not the purpose of the anti-retaliation
An appropriate order follows.
O:\C IV IL 15\15-3507 childs v. universa l\15CV3507.4.19.16.Memo.M2D.docx
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