WHENRY et al v. BOARD OF COMMISSIONERS, COUNTY OF MERCER et al

Filing 40

MEMORANDUM OPINION re 32 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by JOHN LECHNER, BOARD OF COMMISSIONERS, COUNTY OF MERCER, MATTHEW B. MCCONNELL, BRIAN BEADER. Because there is no applicable provision of the Fair Labor Standards Act or the Pennsylvania Minimum Wage Act that covers Plaintiffs' claims, Defendants' Motion to Dismiss will be GRANTED as to Counts I and II of the Amnended Complaint 31 . Signed by Judge Maurice B. Cohill on 2/5/2015. (cag)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DOYLE WHENRY, et al.,

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Plaintiffs,

v.
BOARD OF COMMISIONERS, et al.,
Defendants.

Civ. No. 2:14-cv-667
Judge Maurice B. Cohill

OPINION
Pending before the Court is a Motion to Dismiss Plaintiffs' Amended Complaint [ECF
No. 32) filed by Brian Beader, John Lechner, and Matthew B. McConnell who make up the
Board of Commissioners of the County of Mercer (referred to collectively as the "Board" or
"Defendants"). The Motion was filed pursuant to Rule 12(b)(6) ofthe Federal Rules of Civil
Procedure. Plaintiffs allege that Defendants are in violation of the law when they did not pay
Plaintiffs for 10 minutes ofrequired work time before roll-call. In their Motion to Dismiss, the
Defendants assert that Plaintiffs have not filed a viable claim under the Fair Labor Standards Act
("FLSA") or the Pennsylvania Minimum Wage Act ("PMWA"). More specifically, the
Defendants assert the type of claim filed by the Plaintiffs is not covered under the FLSA and
furthermore political subdivisions such as the Board are not employers under PMWA.
Therefore, Plaintiffs' claims are not plausible.
On May 22,2014 Plaintiffs, fifty-seven (57) individuals, joined later by nine more
individuals who consented to opt in (collectively referred to as "Plaintiffs"), filed a Complaint in
Civil Action [ECF No. 1] under the Fair Labor Standards Act for unpaid wages for mandatory
on-the-job time prior to roll call. Plaintiffs are all employed, or were formerly employed, as

corrections officers by Defendants [ECF No. 1 at 8]. The Complaint alleged at Count I, a
Violation of Section 7(k) ofthe FLSA (29 C.F.R. § 553.221) and at Count II, Retaliation under
the FLSA at 29 U.S.C. § 215(3) [ECF No. 1]. Defendants filed a Motion to Dismiss for lack of
Subject Matter Jurisdiction or in the Alternative a Motion to Stay [ECF No. 12]. After this Court
issued an Opinion granting in part and denying in part Defendants' Motion to Dismiss for Lack
of Jurisdiction [ECF No. 21] and denying Defendants' Motion to Stay [ECF No. 21 ], the
Defendants filed an Answer [ECF No. 23] and a Motion for Judgment on the Pleadings [ECF
No. 24]. Plaintiffs filed a Motion for Leave to File an Amended Complaint [ECF No. 31] and
leave was granted by the Court [ECF No. 30].
On October 31, 2014 Plaintiffs filed an Amended Complaint making Defendants' Motion
for Judgment on the Pleadings moot, alleging the same Count I as in the original Complaint, a
Violation of Section 7(k) ofthe FLSA (29 C.F.R. § 553.221), and added Count II a claim under
the Pennsylvania Minimum Wage Act, 43 P.S. § 1367(a). In response, Defendants filed the
Motion to Dismiss [ECF No. 3]} at issue here. The Plaintiffs filed a Brief in Opposition to the
Motion to Dismiss [ECF No. 35] to which the Defendants filed a Reply [ECF No. 39].

I. Standard of Review.
In ruling on a Rule 12(b)( 6) Motion for Failure to State a Claim upon which Relief can be
granted, a court must "'accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the
plaintiff may be entitled to relief."' Phillips v. County of Allegheny, 515 F .3d 224, 233 (3d Cir.
2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)); (see also Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 563, n.8 (2007)). A valid complaint requires only "a short

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and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P.
8(a)(2). Rule 8 does, however, "demand more than an unadorned, the-defendant-unlawfully-harmedme accusation." See Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) (citing Twombly, 550 U.S. at 555).
"To survive a motion to dismiss a complaint must contain sufficient factual matter, accepted
as true, to 'state a claim to relief that is plausible on its face."' Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). "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. at 678 (citing Twombly, 550 U.S. at 556). "Factual allegations [of a complaint] must
be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "This
[standard] 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls
for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the
necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). Thus, "a
plaintiff's obligation to provide the 'grounds' of his 'entitle[ ment] 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 (citation omitted).
The Supreme Court in Iqbal explained that although a court must accept as true all of the
factual allegations contained in a complaint, that requirement does not apply to legal conclusions;
therefore, pleadings must include factual allegations to support the legal claims asserted. See 556
U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements do not suffice." Id. (citing Twombly, 550 U.S. at 555); see also Phillips, 515 F.3d at 232
("We caution that without some factual allegation in the complaint, a claimant cannot satisfy the
requirement that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim

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rests.") (citing Twombly, 550 U.S. at 555 n. 3 (2007)). Accordingly, to survive a motion to dismiss,
a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
Finally, if the court decides to grant a motion to dismiss for failure to state a claim upon
which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the court must next decide whether
leave to amend the complaint must be granted. As explained in Phillips, "We have instructed that if
a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment,
unless an amendment would be inequitable or futile." 515 F.3d 236 (citing Grayson v. Mayview
State Hosp., 293 F.3d 103, 108 (3d Cir.2002)).
II. Relevant Facts.

Plaintiffs were represented by Teamsters Local 250 for collective bargaining and are
covered by a Collective Bargaining Agreement ("CBA") effective January 1, 2009 through
December 31, 2012 [See CBA as Exhibit 1 to Complaint at ECF No. 1]. Though expired, it is
undisputed that the parties continue to operate under the terms of this CBA. The CBA provides,
"A daily mandatory roll call will be implemented and all employees are to report ten ( 10)
minutes before their actual shift begins. This time will not be paid time and will not be used in
the calculation of overtime." [ECF No. 1 at Ex. 1, CBA Art VII].
Plaintiffs allege they have not been paid for the contractually required pre-roll call time
since at least January 1, 2009 [ECF No. 1 at 8] in violation of the FLSA. In addition, Plaintiffs
assert that the practice of unpaid roll call as described above violates the Pennsylvania Minimum
Wage Act. Defendants state that the FLSA provides a remedy for two types of claims in this
context - unpaid overtime for work in excess of the regular work week or wages paid below the
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m1mmum wage. Defendants assert that neither is the case here. In addition, Defendants assert
that the Board is not subject to the law under PMW A. We agree with Defendants that the
Plaintiffs' claim is not cognizable under the law.

III. Legal Analysis.
Defendants seek dismissal of this case based on the letter of the law under FLSA and
PMWA. Defendants assert that the applicable laws do not cover Plaintiffs' claims and therefore,
as a matter of law, the claims should be dismissed.

a. FLSA
Plaintiffs' claim that the 10 minutes of required work time prior to roll call is compensable
time under 29 C.F.R. § 553.221 ("Compensable hours of work") [ECF No. 29 at 13]. Section
553.221 reads as follows:
Compensable hours of work generally include all of the time during which an
employee is on duty on the employer's premises or at a prescribed workplace, as well
as all other time during which the employee is suffered or permitted to work for the
employer. Such time includes all pre-shift and post-shift activities which are an
integral part of the employee's principal activity or which are closely related to the
performance of the principal activity, such as attending roll call, writing up and
completing tickets or reports, and washing and re-racking fire hoses.
29 C.F.R. § 553.221
Defendants counter that Plaintiffs are not entitled to that pay under the FLSA and the
applicable provisions are covered under 29 U.S.C. § 207: (1) The employer must pay overtime
for hours worked in excess of the forty or forty-three hour work week 1 and (2) the employer must
pay its employees at least the "minimum hourly wage for work performed." [ECF No. 34 at 4-5].

1 A public employer may qualify for a higher overtime threshold for those employees whowork in law enforcement
due to the unpredictable and long hours these vocations require [ECF No. 34 at 5, 6].

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(k) Employment by public agency engaged in fire protection or law enforcement
activities
No public agency shall be deemed to have violated subsection (a) of this section with
respect to the employment of any employee in fire protection activities or any
employee in law enforcement activities (including security personnel in correctional
institutions) if(2) in the case of such an employee to whom a work period of at least 7 but less than
28 days applies, in his work period the employee receives for tours of duty which in
the aggregate exceed a number of hours which bears the same ratio to the number of
consecutive days in his work period as 216 hours (or if lower, the number of hours
referred to in clause (B) of paragraph (1)) bears to 28 days,
compensation at a rate not less than one and one-halftimes the regular rate at which
he is employed.
29 U.S.C.A. § 207 (West)
Therefore, in this case, employees are only eligible for overtime pay if their work exceeds
forty-three (43) hours in a given work period based on the typical hours for a typical tour of duty
as established by work practice. The Plaintiffs did not claim overtime for any of the individually
named Plaintiffs.
Further, Defendants state that they are not in violation of the minimum wage requirement of
FLSA because the Plaintiffs' pay was well above the federal minimum wage [ECF No. 34 at 9].
Defendants assert Plaintiffs were above minimum wage whether working a 40-hour work week
or a 43-hour work week allowable for a tour of duty by the FLSA for their type of work [ECF
No. 34 at 9].
This being said, Defendants assert that Plaintiffs are actually claiming "gap time" pay. "Gap
time refers to time that is not covered by the overtime provisions because it does not exceed the
overtime limit, and to time that is not covered by the minimum wage provisions because, even
though it is uncompensated, the employees are still being paid a minimum wage when their

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salaries are averaged across their actual time worked." Davis v. Abington Mem. Hosp., 765 F .3d
236, 243 (3d. Cir. 2014) (citing Adair v. City of Kirkland, 185 F.3d 1055, 1062 n. 6 (9th Cir.
1999)). Defendants state the Third Circuit has taken the position that "[c]ourts widely agree that
there is no cause of action under the FLSA for 'pure' gap time wages- that is, wages for unpaid
work during pay periods without overtime." Davis, 765 F .3d at 244.
Plaintiffs' response to Defendants' argument is that they are not alleging a cause of action for
overtime or for pure gap time pay. Plaintiffs simply allege a straight minimum wage argument
for time worked. Namely, that the FLSA requires that minimum wage be paid for all hours
worked [ECF No. 36 at 4]. Plaintiffs' claim that they are being paid below minimum wage for
roll call because they are being paid nothing for that 10 minutes of time spent every day prior to
roll call [ECF No. 36 at 5]. Furthermore, because the Plaintiffs are hourly employees, not
salaried employees, FLSA requires that they receive payment for all hours actually worked [ECF
No. 36 at 6].
Though Plaintiffs have clarified their claim as simply a minimum wage claim, our task is to
determine whether the claimed time should be considered "gap time" and reviewed under that
analysis or whether we should apply the minimum wage law under the FLSA to the facts of this
case. Any arguments made by Defendants regarding overtime pay are moot.
It is our understanding that the Plaintiffs in this case are or were employed as corrections

officers receiving hourly wages of varying rates well above minimum wage. Therefore, the issue
in this case boils down to whether the employees are entitled to minimum wage for the 10
minutes in which they contractually agreed to work without pay, or do those 10 minutes of pay
get absorbed into their total pay because it is considered "gap time" and they simply need to be
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paid at minimum wage for all hours worked. Defendants assert that if a calculation were
performed to determine whether Plaintiffs were making minimum wage for total hours worked
including the additional 10 minutes of roll call that the employees would still be making at least
minimum wage and the employer would still be in compliance with the FLSA.
The parties have provided two Third Circuit cases which we find on point with our issue and
instructive in this case. The first case is Rosano v. Township of Teaneck, 754 F.3d 177 (3d Cir.
2014) in which Plaintiffs, police officers, filed a suit inter alia because they were not
compensated for time spent attending daily roll calls. See id. at 182-83. Teaneck argued that
Plaintiffs were compensated for this "muster time" as a component of their base salaries. See id.
at 190. As basis for this argument they relied upon the negotiated collective bargaining
agreement, which provided that the muster time would be unpaid. See id. The Third Circuit
agreed with Teaneck and found that Plaintiffs failed to make a case that the pre- and post-roll call
time was uncompensated. We acknowledge, "The FLSA establishes federal minimum-wage,
maximum hour and overtime guarantees that cannot be modified by contract." Genesis Health
Care Corp. v. Symczyk,- US-, 133 S. Ct. 1523, 1527 (2013). However, "Although federal law
governs the construction of a collective bargaining agreement ("CBA"), traditional rules of
contract interpretation apply when not inconsistent with federal labor law." Rosano, 754 F.3d at
190. The Third Circuit found the CBA not inconsistent with federal law because they found the
uncompensated time to have been negotiated between the parties and included as part of their
salaries and met minimum wage requirements.
The second case, perhaps even more persuasive than Rosano, is Davis v. Abington Memorial
Hospital, 765 F.3d 236 (3d Cir. 2014). In this case healthcare workers brought a collective class

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action against their employers for inter alia "Unpaid Pre- and Post-Schedule Work Policy." ld.
at 239. Namely, they sought to recover wages for uncompensated hours worked that "fall
between the minimum wage and the overtime provisions of the FLSA." ld. at 243. This scenario
is similar to Plaintiffs in this case who are not claiming overtime and who receive pay greater
than minimum wage. There is a "clear weight of authority [which holds] that pure gap time
claims - straight time wages for unpaid work during pay periods without overtime- are not
cognizable under the FLSA, which requires payment of minimum wages and overtime wages
only." Id. at 244. The Third Circuit in Davis followed the weight of authority as we will in this
case.
The argument of Plaintiffs is that they are not being paid for hours worked according to the
FLSA provision which states, "Compensable hours of work generally include all of the time
during which an employee is on duty on the employer's premises or at a prescribed workplace, as
well as all other time during which the employee is suffered or permitted to work for the
employer. Such time includes all pre-shift and post-shift activities ... " 29 C.F.R. § 553.221.
However, this provision of the FLSA cannot be read in a bubble. We must take into account
other applicable provisions of the FLSA and the laws intended purpose. The FLSA seeks to
protect employees by providing rules under which an employee must be paid minimum wage or
is eligible for overtime pay. Plaintiffs do not allege they are owed overtime pay, but do seek to
be compensated for time spent in roll call that was contractually agreed to as uncompensated.
The facts ofthis case do not lend themselves to the protections ofthe FLSA.
Plaintiffs are or were compensated at well-above the minimum wage on an hourly basis. The
uncompensated time sought was 10 or at most 15 minutes a day before roll call. The Plaintiffs

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have not alleged that the calculation of this additional pay would equate to their being paid below
minimum wage overall. Defendants assert that Plaintiffs, given the additional 10 minutes
compensated time, would not fall below minimum wage at the 40 or 43 hour/week thresholds
provided in FLSA for both non-exempt and exempt employer scenarios. Therefore, the policy
behind the FLSA that all employees receive minimum wage for hours worked is fulfilled in this
case. Given these facts and the fact that Plaintiffs and Defendants negotiated this term into their
CBA, it would be logical for us to conclude, as the Court did in Rosano, that the Plaintiffs higher
rate of pay was considered when inserting this unpaid time into the terms of the Agreement.
Construing the facts of this case in a light most favorable to Plaintiffs, we do not find that
there is a plausible legal claim under the provisions of the FLSA.
b. PMWA

Plaintiffs allege that failure to pay them for uncompensated time before roll-call violates the
Pennsylvania Minimum Wage Act, 43 P.S. § 333.101. As such, Plaintiffs are entitled to
reasonable attorneys' fees and costs of this action. Id. at § 333.113. This provision of the
Pennsylvania Statues provides for the minimum wage for specific years.
(a.1) If the minimum wage set forth in the Fair Labor Standards Act of 1938 (52 Stat.
1060, 29 U.S.C. § 201 et seq.) is increased above the minimum wage required under
this section, the minimum wage required under this section shall be increased by the
same amounts and effective the same date as the increases under the Fair Labor
Standards Act, and the provisions of subsection (a) are suspended to the extent they
differ from those set forth under the Fair Labor Standards Act.
43 Pa. Cons. Stat. Ann.§ 333.104 (West)
Defendants argue here that the definition of Employer under this Act does not include
municipal corporations or political subdivisions [ECF No. 34 at 12]. "(g) 'Employer' includes
any individual, partnership, association, corporation, business trust, or any person or group of
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persons acting, directly or indirectly, in the interest of an employer in relation to any employe?'
Pa. Stat. Ann.§ 43 P.S. § 333.103 (West). Plaintiffs disagree stating there is no precedential
cases denying a cause of action for public employees under the PMWA [ECF No. 36 at 8].

We decline to rule on this argument as our finding under the FLSA makes this issue
moot. We have determined that the Plaintiffs are paid above minimum wage taking into account
all hours worked including the "uncompensated" pre-roll call time. Therefore, a claim under
Pennsylvania Law seeking payment of minimum wage for Plaintiffs cannot stand.

IV. Conclusion.

Because there is no applicable provision of the Fair Labor Standards Act or the
Pennsylvania Minimum Wage Act that covers Plaintiffs claim, Defendant's Motion to Dismiss
will be granted as to Counts I and II ofPlaintiffs' Amended Complaint [ECF No. 31]. The Court
does not grant leave to amend in this case as it considers, given the facts as presented in the
pleadings, that the law cannot apply in this situation and any attempt at amending the Complaint
would be futile.
An appropriate Order follows.

~1~h~,~~bt-

February ~2015

Senior District Court Judge

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