Neviaser v. Mazel Tec, Inc.

Filing 15

MEMORANDUM AND ORDER: granting 5 Motion to Dismiss Counts Two, Three and Four of Complaint. Signed by District Judge J. Garvan Murtha on 7/25/2012. (wjf)

UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
JONATHAN NEVIASER,

:
:
Plaintiff,
:
:
v.
:
:
MAZEL TEC, INC. d/b/a
:
PINNACLE SKI & SPORTS
:
:
Defendant.
:
_____________________________________ :

File No. 1:12-CV-48

MEMORANDUM AND ORDER
(Doc. 5)
I.

Introduction
Plaintiff Jonathan Neviaser (Neviaser or Plaintiff) brings this action against Mazel Tec,

Inc. d/b/a Pinnacle Ski & Sports (Pinnacle or Defendant) alleging violations of the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201 et seq., Vermont’s Minimum Wage and Overtime Law
(MWOL), 21 Vt. Stat. Ann. § 384, and the “clear and compelling public policies” of the state of
Vermont. (Doc. 1.) Neviaser seeks punitive damages, back pay, front pay, liquidated damages,
interest, costs, and attorneys’ fees. Defendant moves to dismiss counts two, three and four under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be
granted. (Doc. 5.) Neviaser opposes the motion. (Doc. 11.) For the reasons stated below, the
Court grants the motion.
II.

Background
The following facts are assumed to be true for purposes of the pending motion and are

gleaned from the complaint (Doc. 1). Neviaser worked at Defendant’s store, Pinnacle Ski &
Sports, in Stowe, Vermont from time to time for eleven years. In May 2011, he was an inventory

coordinator in Defendant’s warehouse with duties involving physically organizing the
warehouse, unpacking boxes of goods, and moving boxes of goods from the warehouse to the
store in his personal vehicle. Neviaser did not supervise anyone or exercise independent
judgment, performed his job duties satisfactorily, and had an excellent work history. After he
began to receive a salary of $650 per week, Defendant pushed him to work in excess of forty
hours per week and, between May 2011 and November 28, 2011, Neviaser worked
approximately fifteen hours of overtime.
On the morning of November 28, Neviaser complained to his supervisor that Defendant
was violating the law by not paying him overtime. That afternoon, he was demoted. He told his
supervisor he would be filing a complaint with the Labor Department. Immediately thereafter, at
approximately 5:00 p.m., the supervisor fired him. That evening, Neviaser called the
Defendant’s owner, leaving a message. The owner called back, asking Neviaser if “this is the
way you really want to handle this situation?” (Doc. 1 ¶ 24.) Neviaser replied the issue was
about Defendant paying him and others illegally, and the owner responded “don’t worry about
them; you are not working here anymore,” and “if you want to go ahead and file a complaint with
the Labor Department, go ahead and do it.” Id. ¶25.
Neviaser does not allege he filed a complaint with the labor department or any other
government agency. He initiated this action in March 2012.

2

III.

Discussion
A.

Legal Standard

A motion to dismiss tests the legal rather than the factual sufficiency of a complaint.
See, e.g., Sims v. Ortiz, 230 F.3d 14, 20 (2d Cir. 2000). The Court will grant a motion to dismiss
only if the pleader fails to show a “plausible entitlement to relief.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). The Court accepts the facts alleged in the pleading as true, draws all
reasonable inferences in favor of the pleader, and dismisses only “if the facts as alleged are
insufficient to raise a right to relief above the speculative level.” Price v. N.Y. State Bd. of
Elections, 540 F.3d 101, 107 (2d Cir. 2008) (citation and internal quotation marks omitted). A
complaint must state a plausible -- not just possible -- claim for relief to survive a motion to
dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). Determining whether a complaint
survives a motion to dismiss requires the court to make a “context-specific” analysis and “draw
on its judicial experience and common sense.” Id. at 1950 (internal citations omitted).
B.

Count II

Defendant moves to dismiss count two of Plaintiff’s complaint alleging his termination
constituted unlawful retaliation under the FLSA, 29 U.S.C. § 215. (Doc. 5 at 3-6.) Section 215
provides:
[I]t shall be unlawful . . . to discharge . . . 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, or has served or is about to serve on an industry committee.
29 U.S.C. § 215(a)(3). The Second Circuit has held only the filing of formal complaints to a
government authority is protected under the FLSA: an informal complaint made directly to an

3

employer does not constitute protected activity. Lambert v. Genesee Hosp., 10 F.3d 46, 55
(2d Cir. 1993). Recently, the Supreme Court held oral as well as written complaints suffice to
“fall within the scope of the phrase ‘filed any complaint’ in the [FLSA’s antiretaliation
provision.” Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1336 (2011).
The Court, however, specifically noted, in declining to consider an argument that the
antiretaliation provision applies only to complaints filed with the government, that “[r]esolution
of the Government/private employer question is not a predicate to an intelligent resolution of the
oral/written question that we granted certiorari to decide. . . . [W]e state no view on the merits of
[the] alternative claim.” Id. (internal quotation marks and citation omitted).
The parties dispute whether Kasten has abrogated Lambert’s holding regarding
complaints to supervisors. Compare Doc. 5 at 4-5 with Doc. 11 at 3-6. Plaintiff acknowledges
Kasten “declined to expressly resolve the government/private employer question.” (Doc. 11
at 6.) Accordingly, the Court holds the holding of Lambert -- that complaints to supervisors do
not suffice as a protected activity -- is controlling. Accord Ryder v. Platon, No. 11-CV-4292,
2012 WL 2317772, at *7-8 (E.D.N.Y. June 19, 2012); Hyunmi Son v. Reina Bijoux, Inc.,
823 F. Supp. 2d 238, 244 (S.D.N.Y. 2011).
Therefore, while Neviaser’s claim does not fail because his complaint was made orally, it
fails because the only alleged complaints were made to his supervisor and the Defendant’s owner
and not a government authority. (Doc. 1 at 3-4.) Plaintiff’s alternative argument that the facts of
his case are distinguishable from the facts of Lambert also misses the mark. (Doc. 11 at 6-7.)
Plaintiff argues because he informed Defendant he would be filing a complaint with a
governmental agency, but was terminated prior to doing so, he makes out a claim for retaliatory
4

discharge. Id. The flaw in Plaintiff’s argument is that the FLSA requires that a complaint has
actually been filed. See 29 U.S.C. § 215(a)(3) (unlawful to discharge an employee “because such
employee has filed any complaint”). Given Lambert’s holding that a complaint made to a
supervisor does not suffice, Plaintiff has not stated a claim for unlawful retaliation under the
FLSA.
Defendant’s motion to dismiss count two of the complaint is granted.
C.

Count III

Defendant also moves to dismiss count three of Plaintiff’s complaint alleging
Defendant’s demotion and termination of Plaintiff is a willful violation of the clear and
compelling policies of the State of Vermont. (Doc. 5 at 6-8.) Defendant argues there is no such
public policy in Vermont, as evidenced by the legislature not including a remedy for retaliatory
discharge in the Minimum Wage and Overtime Law, and even if there were, such a cause of
action would be preempted by the FLSA or the Vermont MWOL. Id. at 5-7. Plaintiff argues
there is a public policy in the state of Vermont protecting an employee from discharge for
requesting wages owed. (Doc. 11 at 8.)
Under Vermont law, an at-will employee may be discharged at any time with or without
cause, “‘unless there is a clear and compelling public policy against the reason advanced for the
discharge.’” Dulude v. Fletcher Allen Health Care, Inc., 807 A.2d 390, 397 (Vt. 2002) (citing
Jones v. Keogh, 409 A.2d 581, 582 (Vt. 1979)). An at-will employee may maintain a separate,
independent claim for wrongful discharge in violation of public policy. Dulude v. Fletcher Allen
Health Care, Inc., 807 A.2d 390, 397 (Vt. 2002) (citing Payne v. Rozendaal, 520 A.2d 586, 588
(Vt. 1988)). The Vermont Supreme Court has defined public policy as “the community
5

commonsense and common conscience, extended and applied throughout the state to matters of
public morals, public health, public safety, public welfare, and the like,” and “when an
employer’s course of conduct with regard to an at-will employee is cruel or shocking to the
average person’s conception of justice, such conduct must be considered contrary to public
policy even if the policy is not explicitly set forth in our written laws.” Adams v. Green
Mountain R.R. Co., 862 A.2d 233, 235 (Vt. 2004) (internal quotation marks and citations
omitted).
In a one-paragraph allegation, Neviaser claims his demotion and termination for asserting
his right to overtime under the FLSA and MWOL is a willful violation of the clear and
compelling policies of the state of Vermont. (Doc. 1 ¶ 35.) In opposition, he attempts to flesh
out this threadbare claim by pointing to the Vermont public policy that “workers employed in any
occupation should receive wages . . . to be fairly commensurate with the value of the services
rendered.” (Doc. 11 at 8 (citing 21 Vt. Stat. Ann. § 381).) And since the legislature has also
mandated overtime pay, 21 Vt. Stat. Ann. § 384, “it has determined that such wages are required
in accordance with the public policy of the State of Vermont. Denying an employee the wages
that are owed to him in accordance with the public policy of the State of Vermont, and then
discharging said employee for demanding such wages, is necessarily, a violation of the public
policy.” (Doc. 11 at 8.)
In full, the public policy Neviaser has cited requires “workers employed in any
occupation should receive wages sufficient to provide adequate maintenance and to protect their
health, and to be fairly commensurate with the value of the services rendered.” 21 Vt. Stat. Ann.

6

§ 381. Neviaser has not pointed to any source of a Vermont public policy against demotion or
termination for asserting his right to overtime other than section 381.
At this stage in the litigation, the Court assumes the factual allegation of Plaintiff’s
complaint, that he is owed overtime wages for approximately fifteen hours of work between
May 2011 and the end of November 2011, is true. As a matter of law, however, the Court does
not find there is a clear and compelling public policy here, where Plaintiff seeks payment for
approximately one extra hour of work performed, on average, once every two weeks because
Defendant’s course of conduct is not cruel or shocking.
The Vermont Supreme Court has noted:
While full employment and employer-employee harmony are noble goals to which
society aspires, they alone do not present the clear and compelling public policies
upon which courts have been willing to rely in upholding an action for discharge
of an employee at will. Nor is the fact that bad faith, malice and retaliation are
motives upon which we look askance sufficient to impel us to find a clear and
compelling public policy where . . . there is none.
Jones v. Keogh, 409 A.2d 581,582 (Vt. 1979) (refusing to find a public policy against discharge
in retaliation for asserting rights in connection with vacation time and sick leave).
Thus, drawing on judicial experience and common sense, as Iqbal directs, the Court
grants the motion to dismiss count three of the complaint.
D.

Count IV

Lastly, Defendant moves to dismiss count four of Plaintiff’s complaint alleging a cause of
action for punitive damages. (Doc. 5 at 8-9.) Because Neviaser acknowledges a claim for
punitive damages is not a standalone claim (Doc. 11 at 11), count four is dismissed. Amending

7

the complaint is not necessary as the other claims for relief include a request for punitive
damages and the allegations of paragraph 38 remain.
IV.

Conclusion
For the reasons discussed above, Defendant’s motion to dismiss counts two, three and

four of Plaintiff’s complaint is GRANTED. The Court will contact the parties shortly to
schedule a status conference.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 25th day of July, 2012.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

8