RUMMEL v. HIGHMARK, INC.
Filing
19
MEMORANDUM AND ORDER OF COURT denying 4 Motion to Dismiss for Failure to State a Claim, and as more fully stated in said Memorandum and Order of Court. Signed by Judge Kim R. Gibson on 11/15/2013. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JACQUELINE RUMMEL, on behalf of
herself and all others similarly situated,
Plaintiff,
v.
HIGHMARK, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
CIVIL ACTION NO. 3:13-cv-87
JUDGE KIM R. GIBSON
MEMORANDUM AND ORDER OF COURT
GIBSON, J.
I.
SYNOPSIS
This matter anses from Plaintiff Jacqueline Rummel's ("Plaintiff') allegations that
Defendant Highmark, Inc. ("Defendant" or "Highmark") failed to pay certain employees
overtime wages in violation of the Pennsylvania Minimum Wage Act ("PMW A"), 43 Pa. Cons.
Stat. § 333.101 et seq., and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.
Currently before the Court is Defendant's motion to dismiss (ECF No. 4) Plaintiff's amended
complaint (ECF No. 1-1 at 37-58), pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. For the reasons that follow, the Court finds that Plaintiff's amended complaint states
a plausible claim for relief. Accordingly, Defendant's motion will be DENIED.
II.
JURISDICTION AND VENUE
The Court has subject matter jurisdiction over the federal claims made under the Fair
Labor Standards Act pursuant to 28 U.S.C. § 1331, and the Court has supplemental jurisdiction 1
1
The Court notes that neither party has addressed whether this Court can exercise supplemental jurisdiction
over Plaintiffs PMW A claims. This Court is well aware of the ongoing debate within this Circuit concerning the
viability of an action that raises both opt-in class action claims under the FLSA and opt-out class action claims under
state wage laws, such as the PMWA, regarding jurisdiction, preemption, and other similar issues. This Court has
1
over the state law clams made under the Pennsylvania Minimum Wage Act pursuant to 28 U.S.C
§ 1367. Venue is proper under 28 U.S.C. 1391(b).
III.
BACKGROUND
A. Procedural History
Plaintiff initiated the instant action by filing a class action complaint2 in the Court of
Common Pleas of Cambria County on February 1, 2013, alleging violations ofthe PMWA. (See
ECF No. 1-1 at 1-18).
On March 25, 2013, Defendant filed preliminary objections to the
complaint (see ECF No. 1-1 at 19-27), along with a memorandum in support (see ECF No. 1-1 at
28-36), requesting that Plaintiffs PMWA claim be dismissed for legal insufficiency. Plaintiff
filed an amended class action complaint ("amended complaint") in the Court of Common Pleas
of Cambria County on April 5, 2013, adding a second count alleging violations of the FLSA.
(See ECF No. 1-1 at 37-58).
On April 18, 2013, Defendant removed the case from the Court of Common Pleas of
Cambria County to this Court. (ECF No. 1). Thereafter, Defendant filed a Rule 12(b)(6) motion
to dismiss (ECF No. 4) for failure to state a claim, along with a brief in support (ECF No. 5), on
previously held that "[b]ecause the class certification procedures under 29 U.S.C. § 216(b) are incompatible with
those set forth in Fed. R. Civ. P. 23, the Court must dismiss those state-law claims in [a plaintiff's complaint] that
fall within the provisions of the Fair Labor Standards Act." Bros. v. Portage Nat. Bank, No. 3:06-cv-94, 2007 WL
965835, at *7 (W.D. Pa. Mar. 29, 2007); see also Ellis v. Edward D. Jones & Co., L.P., 527 F. Supp. 2d 439 (W.D.
Pa. 2007); Burkhart-Deal v. Citifinancial, Inc., No. 07-cv-1747, 2008 WL 2357735, at *2 (W.D. Pa. June 5, 2008);
Pereira v. Foot Locker, Inc., 261 F.R.D. 60, 71 (E.D. Pa. 2009).
However, this Court is also aware that the Third Circuit has recently concluded that the "purported
'inherent incompatibility' [theory] does not defeat otherwise available federal jurisdiction" and declined to adopt the
view "that jurisdiction over an opt-out class action based on state-law claims that parallel the FLSA is inherently
incompatible with the FLSA's opt-in procedure." Knepper v. Rite Aid Corp., 675 F.3d 249, 261-62 (3d Cir. 2012).
Because neither party raised this issue and because no motion for class certification has been filed, the Court will
decline to address the application of this issue to the instant case until a future, appropriate time.
2
Jacqueline Rummel v. Highmark, Inc., No. 2013-cv-367, Court of Common Pleas of Cambria County,
filed February I, 2013.
2
April 19, 2013. Plaintiff filed a brief in opposition (ECF No.7) to Defendant's motion on April
29,2013, and Defendant filed a reply brief(ECF No. 10) on May 7, 2013.
B. Facts
Plaintiff alleges the following facts in her amended complaint. 3
employment with Highmark on February 20, 1995. (Am. Compl.
~
Plaintiff began
5). In May 1997, Plaintiff
was promoted to the role of supervisor in the customer service unit of Highmark's Healthplan
Operations ("HPO") Department, a Highmark call center in Johnstown, Pennsylvania.
~
Compl.
6).
(Am.
Plaintiffs job duties included, among others, monitoring customer service
representatives, completing performance evaluation worksheets for the employees she
monitored, and interviewing job applicants for customer service representative positions. (Am.
Compl.
~~
7, 13, 20).
Plaintiffs supervisor position required her to work more than 40 hours per workweek
and/or more than 8 hours per workday ("additional hours") at various times throughout her
employment. (Am. Compl.
~
36). Plaintiff worked these additional hours on a monthly basis
and for numerous reasons, including attending meetings, receiving training, completing staff
merit reviews, providing training to new employees, and conducting interviews. (!d.
~
37). The
number of additional hours varied from month to month, but working overtime was a regular and
required part of Plaintiffs job. (!d.
~
38). Highmark has not compensated Plaintiff in any way
for the additional hours that she worked.
(!d.
~
40).
Throughout her employment with
Highmark, Plaintiff received positive performance reviews and regular pay raises. (!d.
Nevertheless, Highmark terminated Plaintiff from employment on August 31, 2012.
3
(!d.~
~
33).
35).
Plaintiffs amended complaint is docketed in this Court at ECF Document 1-1, at pages 37-58, and will be
cited as "Am. Compl."
3
Following her termination from employment, Plaintiff initiated the instant action by filing
a class action complaint in the Court of Common Pleas of Cambria County, which the Defendant
removed to this Court and now moves to dismiss. The parties have fully briefed the Court, and
this matter is ripe for disposition.
IV.
LEGAL STANDARDS
Defendant moves to dismiss Plaintiff's amended complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). The Federal Rules of Civil Procedure require that a complaint contain
"a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.
Civ. P. 8(a)(2). Rule 12(b)(6) allows a party to seek dismissal of a complaint or portion of a
complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
Although the federal pleading standard has been "in the forefront of jurisprudence in recent
years," the standard of review for a Rule 12(b)(6) challenge is now well established. Fowler v.
UPMC Shadyside, 548 F.3d 203, 209 (3d Cir. 2009).
In determining the sufficiency of a complaint, a district court must conduct a two-part
analysis. First, the court must separate the factual matters averred from the legal conclusions
asserted. See Fowler, 578 F.3d at 210. Second, the court must determine whether the factual
matters averred are sufficient to show that the plaintiff has a "plausible claim for relief." !d. at
211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The complaint need not include
"detailed factual allegations." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, the court must
construe the alleged facts, and draw all inferences gleaned therefrom, in the light most favorable
to the non-moving party. See id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651,
653 (3d Cir. 2003)). However, "legal conclusions" and "[t]hreadbare recitals of the elements of
4
a cause of action ... do not suffice." Iqbal, 556 U.S. at 678. Rather, the complaint must present
sufficient "factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Sheridan v. NGK Metals Corp., 609 F.3d 239,
263 n.27 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 678).
Ultimately, whether a plaintiff has shown a "plausible claim for relief' is a "context
specific" inquiry that requires the district court to "draw on its judicial experience and common
sense." Iqbal, 556 U.S. at 679. The relevant record under consideration includes the complaint
and any "document integral or explicitly relied on in the complaint." US. Express Lines, Ltd. v.
Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (citing In re Burlington Coat Factory Sec. Litig., 114
F .3d 1410, 1426 (3d Cir. 1997). If a complaint is vulnerable to dismissal pursuant to Rule
12(b)( 6), the district court must permit a curative amendment, irrespective of whether a plaintiff
seeks leave to amend, unless such amendment would be inequitable or futile. Phillips, 515 F.3d
at 236; see also Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) ("[L]eave to amend generally
must be granted unless the amendment would not cure the deficiency.").
V.
DISCUSSION
In her amended complaint, Plaintiff alleges that Defendant did not pay her-and a class
of similarly situated individuals-overtime pay for hours worked in excess of forty hours per
workweek. Plaintiffs amended complaint contains two counts. Count 1 alleges violations of the
PMWA, and Count 2 alleges violations of the FLSA.
Defendant argues that Plaintiffs amended complaint should be dismissed because (1)
Plaintiff fails to allege sufficient facts to plausibly establish a prima facie claim under the
PMW A or the FLSA (ECF No. 5 at 10-12); (2) Plaintiff is not covered by the overtime provision
of the PMWA because she was employed in an executive capacity (ECF No. 5 at 7-1 0); (3)
5
Plaintiff fails to allege sufficient facts to establish a willful violation of the FLSA (ECF No. 5 at
12-14); and (4) Plaintiff fails to allege sufficient facts to support a class action claim (ECF No. 5
at 14-17). The Court will separately address each argument.
A. FLSA and PMWA Prima Facie Claim
"Generally, the PMWA and the FLSA each require an employer to pay overtime to
employees for hours worked over forty in a workweek." Cerutti v. Frito Lay, Inc., 777 F. Supp.
2d 920, 925-26 (W.D. Pa. 2011); see also 29 U.S.C. § 207; 43 Pa. Cons. Stat.§ 333.104(c). To
state a prima facie claim under the FLSA, a plaintiff must allege that: (1) the defendant was
"engaged in commerce" as that phrase is defined by the FLSA; (2) the plaintiff was an
"employee" as defined by the FLSA; and (3) the plaintiff worked more than forty hours in a
week but was not paid overtime compensation for the hours worked in excess of forty. See 29
U.S.C. § 216(b); Mel! v. GNC Corp., No. 10-cv-945, 2010 WL 4668966, at* 5 (W.D. Pa. Nov.
9, 2010).
Because "the PMWA parallels the FLSA in requiring employers to compensate
employees for overtime hours worked, and has an identical standard of liability as the FLSA in
overtime violation claims," courts analyze PMWA claims and FLSA claims under the same basic
framework. Alers v. City of Philadelphia, 919 F. Supp. 2d 528, 557-60 (E.D. Pa. 2013) (citing
Baum v. Astrazeneca LP, 372 F. App'x 246, 248-49 (3d Cir. 2010) (applying analysis of
overtime compensation violation claims under PMWA and FLSA interchangeably); Messmer v.
Colors In Bloom, Inc., 67 F. App'x 719, 721 n.l (3d Cir. 2003)).
In the instant case, Plaintiff has alleged that Highmark required her to work more than
forty hours per workweek, but did not compensate her for those additional hours worked, in
violation of both the FLSA and PMW A. Defendant argues that Plaintiff has failed to allege
6
sufficient facts to establish a plausible prima facie claim for a violation of the FLSA or the
PMWA. (ECF No. 5 at 10-12).
Regarding the first element of Plaintiffs FLSA claim, Defendant contends that Plaintiffs
amended complaint does not allege any facts suggesting that Highmark is engaged in interstate
commerce. (ECF No. 5 at 11 ). Regarding the third element of Plaintiffs FLSA and PMWA
claims, Defendant contends that Plaintiffs amended complaint does not allege sufficient facts to
"plausibly establish that she worked more than forty hours per week but was not paid overtime
compensation for the hours worked in excess of forty." (ECF No. 5 at 12). More specifically,
Defendant asserts, "Plaintiff must at a minimum allege her weekly salary and the approximate
weekly overtime hours she worked." (ECF No. 5 at 11). Plaintiff counters that she "has alleged
the reason for the overtime ... , the types of work performed during the overtime, and that the
overtime was required on a monthly basis at amounts which varied from month to month," and
that such allegations satisfy the requirements of Twombly and Iqbal. (ECF No.7 at 14).
1. Engaged in Commerce
"Only those employees who are 'engaged in commerce or in the production of goods for
commerce,' or who are 'employed in an enterprise engaged in commerce or in the production of
goods for commerce' may seek recovery under the FLSA' s minimum and overtime wage
provisions." Zhong v. August August Corp., 498 F. Supp. 2d 625, 629 (S.D.N.Y. 2007) (quoting
FLSA, 29 U.S.C. §§ 206(a) and 207(a)(1)).
In the instant case, while Plaintiff does not
specifically state that Highmark was "engaged in commerce," it can be reasonably inferred from
the amended complaint that Plaintiff is alleging that Highmark is an "enterprise engaged in
commerce."
See Zhong, 498 F. Supp. 2d at 629 (noting the plaintiff properly alleged this
element of a FLSA claim where the plaintiff alleged that "[a]t all times relevant to this action,
7
Defendant was an enterprise covered by the FLSA as defined by [the statute]"); see also Shakib
v. Back Bay Rest. Grp., Inc., No. 10-cv-4564, 2011 WL 4594654 (D.N.J. Sept. 30, 2011).
Here, Plaintiff alleges (1) Highmark "is a corporation organized and existing under the
laws of Pennsylvania" (Am. Compl.
~
2); (2) Highrnark "maintains offices throughout
Pennsylvania and conducts business in those offices" (Am. Compl.
~
4); and (3) Highmark "was
an employer subject to the Fair Labor Standards Act" (Am. Compl.
~
119). Likewise, Plaintiff's
amended complaint alleges (1) numerous facts concerning Highrnark's structure relating to
hiring decisions, personnel supervision and review, and work-related policy development and
enforcement (Am. Compl.
~~
9-32); and (2) numerous facts concerning Highrnark's internal
departmental organization (Am. Compl.
~~
49-54). The Court finds that Plaintiff's allegations
are sufficient to state the first element of a prima facie claim to withstand a motion to dismiss.
2. Salary and Work Hours
To state a claim for relief under the FLSA and PMWA, a plaintiff must allege that she
"worked more than forty hours in a week but was not paid overtime compensation for the hours
worked in excess of forty," and must plead facts with "enough heft to establish the plaintiff's
right to relief." Mel! v. GNC Corp., No. 10-cv-945, 2010 WL 4668966, at *5-7 (W.D. Pa. Nov.
9, 2010); see also Guimaraes v. TJXCompanies, Inc., No. 12-cv-01250, 2012 WL 6671333, at*
4 (D.N.J. Dec. 20, 2012). In her amended complaint, Plaintiff alleges,
36. By the nature of her position, [Plaintiff] had to work more than forty (40)
hours in a work week and/or more than eight (8) hours in a workday at various
times throughout [her] employment.
37. [Plaintiff] needed to work these additional hours on at least a monthly basis
and were for various purposes, including, but not limited to, attending meetings,
receiving training, completing staff merit reviews, providing training to new
employees and conducting interviews.
8
38. The number of additional hours that were required varied by month, but
overtime was a continuing, regular and required part ofthe Plaintiffs job.
39. Evidence of the precise number of hours worked by Plaintiff and every other
member of the class is in the possession of the Defendant. ...
40. [Plaintiff] has not been compensated for these additional hours in any way.
(Am. Compl.
~~
(see Am. Compl.
36-40). Likewise, Plaintiff makes detailed allegations regarding her job duties
~~
6-32) and detailed allegations about the nature of the work that she and the
other supervisors performed (see Am. Compl.
~~
41-44 ).
Furthermore, Plaintiff specifically
alleges that she is entitled to the overtime protections of the FLSA and PMWA because
"Highmark systematically and willfully deprived [Plaintiff] of overtime pay . . . Among other
things, Highmark knowingly required [Plaintiff] to work more than 40 hours per week, required
travel and attendance at various functions and meetings and the preparation of time-consuming
performance reviews." 4 (Am. Compl. ~ 45-46).
Although the amended complaint may not be as factually detailed as Defendant may
wish, Plaintiffs allegations are enough to survive a motion to dismiss because Plaintiff has
minimally established a "plausible claim for relief." Schwartz v. Victory Sec. Agency, LP, No.
11-cv-0489, 2011 WL 3047639, at* 3 (W.D. Pa. July 25, 2011); Scott v. Bimbo Bakeries, USA,
Inc., No. 10-cv-3154, 2012 WL 645905, at *3 (E.D. Pa. Feb. 29, 2012) ("Although Plaintiffs do
not include an actual calculation of their average hourly rate of pay, we conclude that such
specificity is unnecessary at this stage.").
4
The allegations quoted above are only a sample of similar allegations repeated throughout Plaintiffs
detailed 127-paragraph amended complaint. See, e.g., Am. Compl. ~ 84 ("Highmark knowingly required the class
members to attend and/or participate in the same types of meetings, training sessions and other events, and to
complete time-consuming performance evaluations, even though Highmark knew that meeting these requirements
would require working in excess of 40 hours per week.").
9
Accordingly, Plaintiff has alleged sufficient facts to plausibly establish a prima facie
claim for violations of both the FLSA and the PMWA to withstand a Rule 12(b)( 6) motion to
dismiss.
B. The PMWA Executive Exemption
Defendant also argues that Plaintiff is exempt from the overtime provision of the PMWA
pursuant to the PMWA's executive exemption. (ECF No.5 at 7-10). As explained above, the
PMWA mandates that "each employee shall be paid for overtime not less than 1-1/2 times the
employee's regular rate of pay for all hours in excess of 40 hours in a workweek." 34 Pa. Code §
231.41; 43 Pa. Cons. Stat. § 333.104(c).
In her amended complaint, Plaintiff alleges that
Highrnark failed to compensate her for hours worked in excess of forty per workweek over the
course of her employment as a supervisor. (Am. Compl.
~~
36, 40, 46, 84, 113-115). Defendant,
however, denies that the PMWA applies, arguing that Plaintiff was employed in an executive
capacity and is thus exempt from the PMWA overtime provision. (ECF No. 5 at 7).
The PMWA exempts certain employees from the requirements of the overtime provision.
Relevant to the discussion here, an employee who works in a "bona fide executive capacity" is
exempt from the overtime provisions of the PMWA. 34 Pa. Code § 231.81. "According to the
PMWA, an employee works in an executive capacity if, in addition to being paid a fixed salary
of $250 or more per week, he or she (1) has a 'primary duty' consisting of 'the management of
the enterprise ... or of a customarily recognized subdivision thereof and (2) is responsible for
'the customary and regular direction of the work of two or more other employees therein."'
Hively v. Allis-Chalmers Energy, Inc., No. 13-cv-106, 2013 WL 2557629, at *1 (W.D. Pa. June
10, 2013) (citing King v. Dolgencorp, Inc., No. 09-cv-146, 2010 WL 9475736, at *10 (M.D. Pa.
May 6, 2010)) (quoting 34 Pa. Code§ 231.82(6)).
10
Courts in the Third Circuit have consistently held that "it is not appropriate to grant a
motion to dismiss based on an affirmative defense where the factual predicate of said defense is
not apparent from the face of the complaint." Hively v. Allis-Chalmers Energy, Inc., No. 13-cv106, 2013 WL 2557629, at *1 (W.D. Pa. June 10, 2013) (citing Brody v. Hankin, 145 F. App'x
768, 771 (3d Cir. 2005)); see also In re Tower Air, Inc., 416 F.3d 229, 242 (3d Cir. 2005)
("[A]ffirmative defenses generally will not form the basis for dismissal under Rule 12(b)(6).").
Likewise, "whether a plaintiff falls within a particular exemption constitutes a mixed question of
law and fact, requiring the Court to examine historical or record facts. . . . In light of this factintensive analysis, courts routinely deny motions to dismiss when a defendant asserts that an
exemption applies." Hively, 2013 WL 2557629 at *2 (quoting Hein v. PNC Fin. Servs. Grp.,
Inc., 511 F. Supp. 2d 563, 570 (E.D. Pa. 2007)); see also Haskins v. VIP Wireless Consulting,
No. 09-cv-754, 2009 WL 4639070, at *6 (W.D. Pa. Dec. 7, 2009) (concluding "such a detailed,
fact-intensive analysis is impossible at this stage of the litigation"); Snyder v. Dietz & Watson,
Inc., 837 F. Supp. 2d 428,451-52 (D.N.J. 2011).
Here, Plaintiff maintains that her supervisor position did not involve '"primary duties' of
a managerial nature," but claims instead that she "functioned only as an objective scorekeeper in
monitoring the employees' adherence to objective performance standards," which were
established by Highrnark. (ECF No. 7 at 5, 7). In her amended complaint, Plaintiff avers the
following:
•
Plaintiff "followed the instructions of her managers and implemented the objective
job requirements ... established by Highmark" (Am. Compl.
11
~
9);
•
Plaintiff "did not plan the employee's work, apportion work among the employees,
direct the tasks that needed to be done, or determine the techniques that were to be
used" (Am. Compl.
•
~
10);
The "policies, rules and standards by which employees were monitored were not
determined by [Plaintiff], but instead, were established by the Plaintiffs superiors at
Highmark" (Am. Compl.
•
~
11);
Plaintiff "had no discretion to deviate from" the policies, rules, and standards
established by Highmark (Am. Compl.
•
~
11 );
Regarding employee evaluations, Plaintiff "did not create the preprinted evaluation
worksheet or have any input as to its use in the evaluation process" (Am. Compl.
~
14);
•
The methods for calculating and implementing employee evaluation ratings were
developed by Highmark, and Plaintiff "had no role in creating [the] bonus/raise
calculation method" (Am. Compl.
•
~~
15-19);
Regarding job applicant interviews, Plaintiff "made no contributions or input into the
creation or use of [the job] applications or interview questions" (Am. Compl.
•
~
21);
Plaintiff "did not have the authority to hire or fire employees, nor did she make
recommendations or suggestions that were given particular weight" (Am. Compl.
~
32);
•
"The work that Plaintiff performed did not involve the use, or ability to use, any
independent judgment or discretion, nor did it require any specialized training,
experience or knowledge" (Am. Compl.
12
~
41).
Furthermore, Plaintiff specifically alleges that she was entitled to the overtime protections of the
PMWA and FLSA because "she was not an 'exempt' employee." (Am. Compl.
~
45).
Under the plausibility standard governing a Rule 12(b)(6) motion, Plaintiffs allegations
"establish a plausible inference that Plaintiffl's] PMWA claims are not barred by the 'executive
capacity' exemption." Hively v. Allis-Chalmers Energy, Inc., No. 13-cv-106, 2013 WL 2557629,
at* 2 (W.D. Pa. June 10, 2013) (citing Iqbal, 556 U.S. at 678). At this stage in the litigation, the
Court need not determine whether the exemption applies, but only whether the Plaintiff has
plausibly stated a claim for relief.
Accordingly, Defendant's motion to dismiss Plaintiffs
PMWA claim under the executive exemption will be denied, without prejudice to Defendant
raising such an argument at summary judgment, if appropriate.
C. Willful Violation of the FLSA 5
Next, Defendant contends, "Plaintiffs claim that Highmark willfully violated the FLSA
is insufficiently plead and, therefore, requires dismissal." (ECF No. 5 at 12). Defendant argues
(1) Plaintiffs amended complaint is devoid of any factual allegations to support a plausible
claim of willfulness, (2) Plaintiff does not allege she complained to Highmark that she was
improperly classified as exempt from the FLSA's overtime provision, and (3) Plaintiff does not
allege the existence of any case law or guidance that should have put Highmark on notice that
she might be improperly classified as exempt. (ECF No.5 at 13).
5
Inasmuch as Defendant's argument concerning Plaintiffs allegations of "willfulness" raises a statute of
limitations defense, that issue is moot. A plaintiff must raise FLSA claims within two years after a cause of action
accrues. See 29 U.S.C. § 255. An employer's "willful" violation of the statute, on the other hand, may be filed
within three years after a cause of action accrues. See Schwartz v. Victory Sec. Agency, LP, No. 11-cv-0489, 2011
WL 3047639, at *4 (W.D. Pa. July 25, 2011). A cause of action accrues "when the employer fails to pay the
required compensation for any workweek at the regular pay day for the period in which the workweek ends." 29
CFR § 790.21; see also Michaelgreaves v. Gap, Inc., No. 11-cv-6283, 2013 WL 257127, at *4 (D.N.J. Jan. 23,
20 13). Plaintiff has alleged that the uncompensated overtime occurred throughout her employment, up until the
time of her termination on August 31, 2012. (Am. Com pl. ~ 35). Plaintiff filed her complaint in the Cambria
County Court of Common Pleas on February I, 2013, which was within the two-year limitations period under the
statute.
13
In response, Plaintiff argues that an employee does not have the burden to "assist her
employer in assuring that she is properly categorized, nor does she have a duty to complain of a
misclassification," and, furthermore, that Plaintiff has pled sufficient facts indicating willful
violations of the FLSA and PMW A. (ECF No. 7 at 15).
Here, Defendant's argument fails for the same reason that the executive exemption
argument fails above. Namely, "the issue of willfulness also may not be resolved at this early
stage of the litigation." Burroughs v. MGC Servs., Inc., No. 08-cv-1671, 2009 WL 959961, at *5
(W.D. Pa. Apr. 7, 2009) (citing Mavrinac v. Emergency Medicine Assoc. of Pittsburgh, No. 04cv-1880, 2007 WL 2908007, at *9 (W.D. Pa. Oct. 2, 2007) ("Whether there has been a willful
violation of the [FLSA] ... is a question of fact to be determined by the fact finder by examining
the evidence at trial.")); see also Zebroski v. Gouak, No. 09-cv-1857, 2009 WL 2950813 (E.D.
Pa. Sept. 9, 2009).
Furthermore, Plaintiffs amended complaint sets forth a plausible claim for relief to
withstand a motion to dismiss.
While a complaint need not include "detailed factual
allegations," the complaint must present sufficient "factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged." See Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008); Sheridan v. NGK Metals Corp., 609 F.3d
239, 263 n.27 (3d Cir. 201 0).
The Court, having construed the alleged facts-and drawing all inferences gleaned
therefrom-in the light most favorable to the non-moving party, finds that Plaintiff has alleged
sufficient facts to support a claim for willful violation of the FLSA to satisfy the plausibility
standard of a motion to dismiss. Specifically, Plaintiff alleges in her amended complaint,
Highmark acted willfully and with reckless disregard to the Act's clearly
applicable provisions, including, but not limited to having policies which require
14
attendance at meetings (some of which required travel) and knowingly requiring
the performance of duties which could not reasonably be completed during a forty
hour work week.
(Am. Compl.
~~
115, 127) (emphasis added).
To further support this assertion, Plaintiffs
amended complaint alleges that Highmark required attendance at training sessions, meetings, and
other events, and required completion of performance evaluations, through which "Highmark
systematically and willfully deprived [Plaintiff] of overtime pay in violation of ... the PMWA
and FLSA." (Am. Compl.
~~
36, 46). Likewise, Plaintiffs amended complaint alleges,
Highmark knowingly required [Plaintiff] to attend and/or participate in . .
meetings, training sessions and other events, and to complete time-consuming
performance evaluations, even though Highmark knew that meeting these
requirements would require working in excess of 40 hours per week.
(Am. Compl.
~
84). In further support of her willfulness claim, Plaintiff alleges that Highmark
failed to "keep a true and accurate record of, among other items, the hours worked each day and
each workweek by its employees, and how much overtime was worked," and "failed to furnish a
statement to all employees with each payment of wages, indicating the number of hours worked
during the specific pay period." (Am. Compl.
~~
116, 117). Taken together, the allegations in
the amended complaint, though very general, state a plausible claim that Defendant willfully
violated the FLSA.
Accordingly, Defendant's motion to dismiss Plaintiffs claims that Highmark willfully
violated the FLSA will be denied without prejudice to Defendant's right to challenge Plaintiffs
allegation of willfulness at a later stage in this litigation, if appropriate. See Burroughs v. MGC
Servs., Inc., No. 08-cv-1671, 2009 WL 959961, at *5 (W.D. Pa. Apr. 7, 2009).
15
D. Class Action Claim 6
Finally, Defendant contends that Plaintiffs amended complaint fails to allege facts
identifying a plausible class of similarly situated employees. (ECF No. 5 at 14-17). "[W]here
... a plaintiff brings suit on behalf of [her]self and others similarly situated, [her] complaint
should indicate who those other employees are and explain their alleged entitlement to relief."
Verdecchio v. Tri-Cnty. Real Estate Maint. Co., Inc., No. 12-cv-1577, 2012 WL 6624200, at *2
(D.N.J. Dec. 19, 2012).
While Plaintiffs amended complaint does not specify the class members by name or state
a precise number of class members, Plaintiff has nonetheless sufficiently identified the potential
members of the class to survive a motion to dismiss. Plaintiffs amended complaint contains the
following allegations, among others:
52. The putative class is brought on behalf of Highmark "supervisors," defined as
"individuals employed as supervisors in Highmark's 'Healthplan Operations"'
department, from 201 0 to the present, to recover unpaid overtime compensation
pursuant to the [PMWA] and the [FLSA].
53 .... [T]he class members performed similar types of tasks as [PlaintiffJ ...
55. . .. Plaintiff believes that there are, at a minimum, dozens, of individuals in
the class of supervisors.
56. . .. Plaintiff knows firsthand of at least 27 supervisors within Highmark's
HPO department.
(Am. Compl. ,, 52, 53, 55, 56). Likewise, Plaintiffs amended complaint contains detailed
factual allegations concerning Highmark' s departmental structure (Am. Compl. ,, 49-51 ), the
6
Because no class certification motion has been filed, the Court agrees with Plaintiff that "[t]o the extent that this
case proceeds as a 'class action' or 'collective action' is not the issue at this stage." (ECF No. 7 at 16). At this time,
the Court considers only whether Plaintiff has stated a plausible claim for relief by identifying a class of similarly
situated employees, and the Court will consider relevant class certification issues at the appropriate time. See Bros.
v. Portage Nat. Bank, No. 06-cv-94, 2007 WL 965835, at *7 (W.D. Pa. Mar. 29, 2007) ("[W]hatever the standards
for certification, the Court will not expect at this juncture anything more from Plaintiff than what Rule 12(b)(6)
ordinarily requires: a 'short and plain statement of the claim showing that the pleader is entitled to relief.' Fed. R.
Civ. P. 8.").
16
job duties ofthe class members (Am. Compl. ,-r,-r 58-86), and the alleged violations ofthe PMWA
and FLSA as related to the class members (Am. Compl. ,-r,-r 106-127).
The allegations in Plaintiffs amended complaint satisfy-albeit minimally-the
plausibility standard of a Rule 12(b)( 6) motion to dismiss. Plaintiff identifies the potential class
members as "supervisors" in Highmark's HPO Department during the time from 2010 to present.
Plaintiff alleges that the number of supervisors deprived of overtime pay number in the dozens,
and Plaintiff states that she is aware of at least 27 supervisors within the HPO Department.
Plaintiff describes the job duties of the supervisors and explains their role and responsibilities
within Highmark's departmental structure. Plaintiff describes how the alleged violations of the
PMWA and FLSA relate to the class members.
Such allegations sufficiently identify the
potential class members to survive the instant motion to dismiss.
VI.
CONCLUSION
For the reasons explained above, the Court finds that Plaintiffs amended complaint states
a plausible claim for relief under the PMWA and the FLSA. Accordingly, the Court will DENY
Defendant's motion to dismiss. An appropriate order follows.
17
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JACQUELINE RUMMEL, on behalf of
herself and all others similarly situated,
Plaintiff,
)
)
)
)
CIVIL ACTION NO. 3:13-cv-87
)
)
v.
)
HIGHMARK, INC.,
Defendant.
JUDGE KIM R. GIBSON
)
)
)
ORDER
AND NOW, this 15th day of November 2013, in accordance with the foregoing
Memorandum, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss (ECF No.4)
Plaintiffs amended complaint is DENIED.
BY THE COURT:
KIM R. GIBSON,
UNITED STATES DISTRICT JUDGE
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?