Davis et al v. Skylink LTD.

Filing 18

MEMORANDUM OPINION AND ORDER granting in part and denying in part 11 MOTION to Dismiss; the plaintiffs' claims for overtime compensation may proceed, but the other claims in the complaint are dismissed consistent with the reasoning set forth in this Opinion. Signed by Judge Robert C. Chambers on 6/15/2011. (cc: attys; any unrepresented parties) (cjy)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

BRION DAVIS, DAVID FAIRBURN
and CURTIS PARKER, Individually
and On Behalf of Others Similarly Situated,
Plaintiffs,
v.

CIVIL ACTION NO. 3:11-0094

SKYLINK LTD.,
an Ohio Limited Liability Company,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is the defendant’s motion to dismiss the plaintiffs’ proposed
collective action complaint. [Doc. 11] For the following reasons, the motion is GRANTED in part
and DENIED in part.
I.

Background and Procedural History
The defendant Skylink, LTD (“Skylink”) is a limited liability company that provides satellite

installation services for DirectTV in West Virginia and several surrounding states. Skylink hires
installation and repair technicians to conduct its business. Rather than paying its technicians an
hourly wage, Skylink utilizes a “point” system, which instead compensates on a per-job basis.
Under this system, the rate of pay depends in large part on the type of work completed.
The named plaintiffs—Brion Davis, David Fairburn, and Curtis Parker—were each
employed by Skylink as technicians during various periods from 2007 to 2009. On February 9,
2011, the plaintiffs filed a putative collective action in this Court alleging that Skylink has violated
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various provisions of the Fair Labor Standards Act (“FLSA” or the “Act”), 29 U.S.C. § 201, et seq.,
in that it (1) fails to keep adequate time records of employee work; (2) fails to pay overtime for work
completed in excess of 40 hours per week; (3) fails to otherwise properly compensate employees;
and (4) wrongfully classifies employees as “exempt” under the FLSA. The plaintiffs request both
monetary and injunctive relief.
II.

Discussion
The plaintiffs seek to initiate this case as a collective action on behalf of themselves and all

other similarly situated under § 216 of the FLSA. See id. § 216(b)-(c). To certify a collective
action, the Court must generally ascertain at the threshold whether a putative class should be
“conditionally certified” and whether potential class members are to be given notice for the
opportunity to “opt-in” to the proposed class. See Hunter v. Sprint Corp., 346 F. Supp. 2d 113, 117
(D.D.C. 2004) (internal citations and quotation marks omitted).
Skylink’s instant motion does not, however, address the propriety of certification of the
plaintiffs’ putative collective action. Instead, it challenges the legal sufficiency of the plaintiffs’
complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 In ruling on a motion to
dismiss for failure to state a claim, the factual allegations in the complaint must be taken in the light
most favorable to the plaintiff. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also
Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993) (“In considering a motion
to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint
in a light most favorable to the plaintiff.”). However, the complaint must consist of more than mere

1

The Court does not therefore at this point address whether the plaintiffs’ proposed class
should be conditionally certified.
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“labels and conclusions,” and contain “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 555, 570. Plausibility is established “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009).
Skylink contends that the plaintiffs are not entitled to pursue a private right of action for
injunctive relief under the FLSA for their claims relating to overtime compensation. Second, it
argues that there is similarly no private cause of action for violations of the FLSA’s record-keeping
provisions. Finally, it maintains that the plaintiffs fail to state a claim for violations of the FLSA’s
applicable overtime and minimum wage provisions, and for misclassification. The Court addresses
each argument in turn.
A.

Injunctive Relief

Section 217 of the FLSA gives district courts jurisdiction to enter injunctive relief against
an employers’ violations of the Act. 29 U.S.C. § 217. Generally, the Secretary of Labor “may
investigate and gather data regarding the wages, hours, and other conditions and practices of
employment in any industry subject to [the] Act . . . to determine whether any person has violated
any provision of [the Act].” 29 U.S.C. § 211(a). The FLSA provides that the Secretary “shall bring
all actions under section 217.” Id. (emphasis added).
The plaintiffs’ complaint requests that the Court issue an order “enjoin[ing] Defendants to
cease and desist from their violations of the FLSA.” Pls.’ Compl. 7, No. 1. The crux of the
plaintiffs’ allegations concerns FLSA overtime violations. Under § 216(b), litigants may seek
monetary relief under the FLSA’s minimum wage and overtime provisions. See 29 U.S.C. § 216(b)
(noting that any employer who violates the provisions in §§ 206 or 207 of the FLSA “shall be liable

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to the employee[s] . . . in the amount of their unpaid minimum wages, or their unpaid overtime
compensation, as the case may be, and in an additional equal amount as liquidated damages.”).
Section 216(b), however, plainly does not include equitable relief as an available remedy in an
employee suit for violations of the Act’s overtime or minimum wage provisions. See Bailey v. Gulf
Coast Transp., Inc., 280 F.3d 1333, 1336 n. 4 (11th Cir. 2002) (discussing § 216(b)). Indeed, Courts
have generally held that the right to seek injunctive relief under these provisions rests exclusively
with the Secretary. See, e.g., Howard v. City of Springfield, 274 F.3d 1141, 1145 (7th Cir. 2001);
UFCW, Local 1564 of N.M. v. Albertson’s, Inc., 207 F.3d 1193, 1197-98 (10th Cir. 2000); Powell
v. Florida, 132 F.3d 677, 678 (11th Cir. 1998); Indergit v. Rite Aid Corp., No. 08-civ-9361, 2010
U.S. Dist. LEXIS 32322, at *42-44 (S.D.N.Y. March 31, 2010); cf. Bailey, 280 F.3d at 1335
(distinguishing the remedies under § 216(b) for violations of the FLSA’s anti-retaliation provisions
and those available for violations of the wage and overtime provisions).
The plaintiffs have provided no authority that would compel the Court to reach a conclusion
different than the many courts that have already addressed this question. Consequently, the Court
GRANTS Skylink’s motion to dismiss any request for injunctive relief.
B.

Record-Keeping

The plaintiffs contend that Skylink failed to keep or make adequate time records as required
by the FLSA. See 29 U.S.C. § 211(c). Skylink argues that there is no private right of action under
the FLSA’s record-keeping provisions.
As already discussed with respect to the plaintiffs’ right to seek injunctive relief, § 216 of
the FLSA expressly grants employees limited private rights of action. Authority to enforce the
FLSA’s record-keeping provisions in § 211(c) rests with the Secretary. See, e.g., Elwell v. Univ.

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Hosps. Home Care Servs., 276 F.3d 832, 842 (6th Cir. 2002); Barton v. Pantry, Inc., No.
1:04-cv-748, 2006 U.S. Dist. LEXIS 31290, at *11 (M.D.N.C. May 17, 2006). Section 217
authorizes the Secretary to initiate injunction proceedings to restrain violations of § 215. See 29
U.S.C. § 217. Further, § 215(a)(5) makes it unlawful for an employer to fail to comply with the
record-keeping requirements contained in § 211(c). Thus, by extension, the Secretary maintains the
only statutory authority to restrain violations of § 211(c). The FLSA contains no comparable
provisions permitting employees to bring similar actions either for damages or injunctive relief. See,
e.g., id. § 216(b) (suggesting that employees may only maintain an action under §§ 206 or 207 for
the amount of their unpaid minimum wages, or their unpaid overtime compensation). Thus, the
plain language of the FLSA does not give the plaintiffs the ability to obtain relief for violations of
§ 211(c). For that reason, the Court GRANTS Skylink’s motion to dismiss the plaintiffs’ recordkeeping claims.
C.

Overtime

Under the FLSA, employees are entitled to recover for unpaid overtime compensation. 29
U.S.C. §§ 207, 216(b). “An employer who violates the [FLSA’s overtime provisions] . . . shall be
liable to the employee or employees affected in the amount of their . . . unpaid overtime
compensation . . . and in an additional equal amount as liquidated damages.’” See 29 U.S.C. §
216(b). The plaintiffs here allege that, due to Skylink’s failure to keep sufficient time records of
their work, they were not paid adequate overtime compensation for the work they completed beyond
40 hours per week.
Skylink moves to dismiss the overtime claim under Rule 12(b)(6) of the Federal Rules of
Civil Procedure on the grounds that the plaintiffs’ factual allegations, taken as true, do not state a

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cognizable claim for overtime compensation under the FLSA. Here, Skylink contends that the
plaintiffs’ factual allegations precisely describe the “piece-rate” provisions of the FLSA, see 29
U.S.C. § 207(g), pursuant to which the plaintiffs are actually paid. Under this method, it submits,
the plaintiffs receive one-third of a point for each job completed, and are paid one and a half times
their “effective hourly rate” for each hour that they work over 40 in a given week. In attempting to
demonstrate that the plaintiffs are in fact adequately compensated for overtime work, Skylink
attaches an affidavit and time sheet to its motion to dismiss. On a motion to dismiss, however, the
Court “should consider only the allegations contained in the complaint, the exhibits to the complaint,
matters of public record, and other similar materials that are subject to judicial notice.” Pennington
v. Teufel, 396 F. Supp. 2d 715, 719 (N.D. W. Va. 2005). Where materials outside of the pleadings
are actually considered by the Court, a motion to dismiss must be treated as a motion for summary
judgment under Rule 56, and the parties must be given a reasonable opportunity to present evidence
pertinent to the motion. See Fed. R. Civ. P. 12(d). Here, the Court does not consider the external
documents attached to Skylink’s motion to dismiss.
The plaintiffs have adequately stated a claim for overtime compensation under the FLSA,
and they should be entitled to discovery in order to investigate their claim further. Namely, they
assert in the complaint that Skylink did not keep adequate records of their work hours and that they
were routinely required to work in excess of 40 hours per week without overtime compensation.
The plaintiffs need not provide a running list of specific work days for which they were not paid;
it is enough that they have provided a clear factual statement charging as much. This is not a case
where the complaint contains nothing more than a mere legal conclusion—rather, the plaintiffs have
stated facts which, if true, would entitle them to relief. This is all that is required under Rule

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12(b)(6).
Accordingly, the Court DENIES Skylink’s motion to dismiss the plaintiffs’ overtime
compensation claims.
D.

Residual Claims

Skylink also contends that the plaintiffs have failed to state claims for violations of the
FLSA’s minimum wage provisions and for “misclassification.” The plaintiffs concede that, despite
the fact that they seemingly made allegations to the latter effect in the complaint, they only purport
to state a claim for violations of the FLSA’s overtime provisions. Therefore, inasmuch as they do
not appear to challenge Skylink’s motion to dismiss these claims, the Court GRANTS the motion
as to any claims alleged under the FLSA’s minimum wage provisions, see 29 U.S.C. § 206, and for
misclassification. See id. § 213(a).
III.

Conclusion
For the foregoing reasons, Skylink’s motion to dismiss the plaintiffs’ proposed collective

action complaint is GRANTED in part and DENIED in part. [Doc. 11] The plaintiffs’ claims for
overtime compensation MAY PROCEED, but the other claims in the complaint are DISMISSED
consistent with the reasoning set forth in this Opinion.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel
of record and any unrepresented parties.

ENTER:

June 15, 2011

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
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