Hernandez v. Praxair Distribution, Inc. et al
Filing
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OPINION AND ORDER granting Defendant's Motion to Dismiss with leave to amend.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ALEJANDRO HERNANDEZ,
Plaintiff,
VS.
PRAXAIR DISTRIBUTION, INC. and
UNITED WELDING SUPPLIES, LLC,
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CIVIL ACTION NO. 4:14-CV-1915
Defendants.
OPINION AND ORDER
Pending before the Court is Defendants’ Motion to Dismiss. Doc. 6. Having considered
the motion, response, reply, the facts in the record, and the applicable law, the Court concludes
the motion should be granted with leave to amend.
I. Background
This is an employment discrimination suit under the Fair Labor Standards Act (FLSA)
for failure to pay overtime wages and for termination of employment in retaliation for engaging
in protected activity. Hernandez alleges he was a local truck driver for Defendants from March
2013 until his termination in September 2013. Doc. 1 ¶ 31. Hernandez alleges Defendants failed
to pay him overtime wages and to pay him for “off-the-clock” time. Doc. 1 ¶ 33. Hernandez
alleges he was terminated in retaliation for complaining about unpaid overtime and “off-theclock” wages. Doc. 1 ¶ 55.
This suit is virtually identical to a prior suit, Hernandez v. Praxair Distribution, Inc. and
Texas Welders Supply Co., Inc., No. 4:14-cv-01535.
II. Legal Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
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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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Factual
matter is limited to “documents attached to or incorporated in the complaint and matters of
which judicial notice may be taken.” U.S. ex rel. Willard v. Humana Health Plan of Texas Inc.,
336 F.3d 375, 379 (5th Cir. 2003).
III. Discussion
The Defendants seek dismissal on two grounds: failure to plead multiple employer
liability and failure to state a claim.
A. Multiple employer liability
In order to state a claim against both Defendants as a single enterprise, Hernandez must
allege Defendants: (1) perform related activities, (2) are a unified operation or under common
control, and (3) share a common business purpose. 29 U.S.C § 203(r)(1). Here, Hernandez states
in his complaint, “This Defendant is part of an ‘enterprise’ that owns, or has owned . . . United
Welding Supplies, Praxair and Praxair Distribution”; “At all material times, Defendants have
been an “enterprise” within the meaning of 29 U.S.C. § 203(r).” Doc. 1 ¶¶ 12, 14. These
conclusory allegations and mere recitation of statutory elements of FLSA coverage do not show
how Defendants satisfy any of the three elements of a single enterprise. See Orozco v. Plackis,
No. A–11–CV–703, 2012 WL 681462, at *4 (W.D. Tex. Feb. 29, 2012) (granting motion to
dismiss where complaint did not allege sufficient facts to demonstrate enterprise coverage but
merely recited statutory elements of a single enterprise; listing cases).
B. Failure to state a claim
An employer violates the FLSA if it fails to pay covered employees at least one and one
half times their normal rate for hours worked in excess 40 hours per work week or fails to pay
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covered employees the minimum wage per hour. 29 U.S.C. §§ 206–207. In order to state a claim
for unpaid overtime wages, Hernandez must plead (1) he was a nonexempt employee of
Defendants; (2) he worked in excess of forty hours per week; and (3) he did not receive
minimum wage or overtime compensation. Hernandez alleges he was a nonexempt employee of
the Defendants, he was regularly required to work in excess of 40 hours per work week, and he
was not paid overtime wages. Doc. 1 ¶¶ 32, 33, 35. Nevertheless, it is not enough to track the
statutory elements at the pleading stage. Twombly, 550 U.S. at 550 (“[A] formulaic recitation of
the elements of a cause of action will not do . . . .”); see Pruell v. Carnitas Christi, 678 F.3d 10,
14 (1st Cir. 2012) (holding a simple statement that plaintiffs worked more than forty hours per
week was inadequate to establish a FLSA claim where the complaint lacked examples or
estimates of unpaid time to substantiate the claim); compare Coleman v. John Moore Services,
Inc., No. H-13-2090, 2014 WL 51290, at *1 (S.D. Tex. Jan. 7, 2014) (granting motion to dismiss
where Plaintiff only alleged general overtime hours worked), with Coleman v. John Moore
Services, Inc., No. H–13–2090, 2014 WL 1671748, at *2 (S.D. Tex. Apr. 28, 2014) (denying
second motion to dismiss where Plaintiff had added “specifics with respect to [his] shift hours
and number of days worked per week”) (citation omitted).
Hernandez also alleges he was terminated from employment after he complained about
his unpaid overtime wages, as a form of retaliation. The FLSA provides that it is unlawful for
any person to “discharge or in any other manner discriminate against any employee because such
employee has filed any complaint or instituted or caused to be instituted any proceeding under or
related to this chapter, or has testified or is about to testify in any such proceeding . . . .” 29
U.S.C. § 215(a)(3). In order to establish a prima facie case of retaliation under the FLSA, a
plaintiff must plead: “(1) participation in statutorily protected activity; (2) an adverse
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employment action, and (3) a causal link between the activity and the adverse action.” Hagan v.
Echostar Satellite L.L.C., 529 F.3d 617, 624 (5th Cir. 2008). The Fifth Circuit has allowed “an
informal, internal complaint to constitute protected activity under Section 215(a)(3).” Id. at 625.
In doing so, however, the Fifth Circuit acknowledged “not all abstract grumblings or vague
expressions of discontent are actionable as complaints.” Id. at 626. The employee’s complaint
must concern a violation of law, and it must be framed in terms of the possible illegality of the
action which the employer has taken. Id.; see also Maynor v. Dow Chemical, 671 F. Supp. 2d
902, 923 (S.D. Tex. 2009). In regard to Hernandez’s complaint, he fails to assert sufficient
factual allegations to indicate he made any form of complaint to the Defendant which stated the
illegality of the Defendant’s actions or violation of FLSA, and he also fails to establish a causal
link between his alleged complaint and his termination. See Payne v. Universal Recovery, Inc.,
No. 3:11–CV–1672–D– BH, 2011 WL 7415414, at *6–7 (N.D. Tex. Dec. 7, 2011) (showing a
sequence of events with dates and other details is sufficient to state a facially plausible claim for
retaliation).
Hernandez also seeks injunctive relief for preservation of evidence. Because he does not
allege that any evidence has been destroyed or any facts suggesting destruction is imminent,
however, Hernandez has not shown he is likely to succeed on the merits, to suffer irreparable
harm, or that the balance of equities tips in his favor. Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008); see Garcia v. United States, 680 F.2d 29, 31 (5th Cir. 1982) (temporary
restraining order).
Since Hernandez has failed to allege facts that, if taken as true, establish a retaliation and
violation claim under the FLSA, the Defendants’ Rule 12(b)(6) motion to dismiss is granted with
leave to amend to provide a sufficient factual basis consistent with this opinion.
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IV. Conclusion
For the foregoing reasons, it is hereby
ORDERED that Defendant’s Motion to Dismiss is GRANTED with leave to amend.
SIGNED at Houston, Texas, this 15th day of July, 2015.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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