Opinion
SA-23-CV-1206-FB (HJB)
07-11-2024
FRANCOISE FLANNIGAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. SENIOR PATH SPECIALISTS, LLC, Defendant.
Fred Biery District Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HENRY J. BEMPORAD UNITED STATES JUDGE
This Report and Recommendation concerns Defendant's Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim. (Docket Entry 9.) The District Court has referred pretrial matters in this case to the undersigned for consideration. (See Docket Entry 13.) For the reasons stated below, I recommend that Defendant's motion (Docket Entry 9) be GRANTED IN PART and DENIED IN PART, and that Plaintiff be required to amend her complaint.
I. Jurisdiction.
Plaintiff brought this putative collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), and the Illinois Minimum Wage Law, 820 Ill. Comp. Stat. 105/1, et seq.. (See Docket Entry 1, at 13-16.) The Court has original jurisdiction over federal claims pursuant to 28 U.S.C. § 1331, and it may exercise supplemental jurisdiction over state-law claims pursuant to 28 U.S.C. § 1367. The undersigned issues this Report and Recommendation pursuant to 28 U.S.C. § 636(b).
II. Background.
Defendant is in the business of providing elder care services, and it hired Plaintiff to provide in-home elder care in and around San Antonio, Texas and Belleville, Illinois from April 2022 to June 2023. (See Docket Entry 1, at 4-5.) Plaintiff alleges that she and other similarly situated individuals were hired as “Day Rate Workers,” and paid a flat amount based on an 8-hour workday, regardless of the total hours actually worked. (Id. at 1.) Plaintiff alleges that she was paid $110 per day for each day actually worked during the first five consecutive days, and $150 per day for the sixth and seventh consecutive days worked. (Id. at 5.) She alleges that, because her job duties included living with and providing in-home healthcare to hospice patients, she and other similarly situated Day Rate Workers typically worked “20-24 hours a day, for 7 days a week.” (Id. at 7.) Based on these daily hours, Plaintiff alleges that she worked 140 to 168 hours per week and, accordingly, that her pay did not meet the minimum or overtime wage compensation requirements of the FLSA and Illinois Law. (Id.) Using a 24-hour workday, Plaintiff calculated her actual compensation at $4.58/hour for the first five consecutive days of work, and $6.25/hour for the sixth and seventh day. (Id. at 6.)
Defendant moved to dismiss Plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6). (Docket Entry 9.) In the motion, Defendant appears to concede that it paid a daily rate of $110 for the first five days during the workweek, and $150 per day for additional days, but alleges that the work day was actually 10 hours per day. (Id. at 2.) Based on this work schedule, Defendant contends that Plaintiff was effectively paid $10 per hour for 8 hours of work per day, and $15 per hour for any overtime hours worked. (Id.) Defendant alleges that Plaintiff's contrary claims are either too conclusory or too implausible to go forward. (Id. at 6-7.)
III. Analysis.
Under Rule 12(b)(6), a party may move to dismiss a complaint if it fails “to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6); see also FED. R. CIV. P. 8(a)(2) (requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”). In reviewing a Rule 12(b)(6) motion, the court accepts all well-pleaded facts as true and views all facts in the light most favorable to the plaintiff. Butler v. Denka Performance Elastomer, L.L.C., 16 F.4th 427, 439 (5th Cir. 2021). To withstand a Rule 12(b)(6) motion, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint must include “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Lincoln v. Turner, 874 F.3d 833, 839 (5th Cir. 2017) (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration in original) (quoting Twombly, 550 U.S. at 557). “A complaint ‘does not need detailed factual allegations,' but the facts alleged ‘must be enough to raise a right to relief above the speculative level.'” Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 765 (5th Cir. 2019) (quoting Twombly, 550 U.S. at 555).
Defendant seeks dismissal of both Plaintiff's minimum-compensation and overtimecompensation claims under the FLSA. (Docket Entry 9, at 5.)This Report and Recommendation addresses each issue in turn.
Defendant also seeks dismissal of Plaintiff's Illinois state claims. (Docket Entry 9, at 5, 9.) However, nowhere in the motion does Defendant actually identify or address the requirements of Illinois law. Accordingly, this Report and Recommendation does not consider them either.
A. Minimum Compensation.
The FLSA requires employers to pay their employees a minimum hourly wage of $7.25. See 29 U.S.C. § 206(a). To state a claim for a violation of the FLSA for failure to pay minimum wage under § 206, a plaintiff must allege facts plausibly showing that: (1) she was employed by the defendant; (2) she was engaged in commerce or in the production of goods for commerce; (3) she was not compensated for all hours worked during each work week at a rate equal to or greater than the minimum wage; and (4) no exemption in 29 U.S.C. § 213 applied. Brito v. Rahman, No. H-22-799, 2022 WL 1719259, at *2 (S. D. Tex. May 27, 2022) (Rosenthal, J.).
Defendant's motion to dismiss concerns only the third element. It contends that Plaintiff's allegations as to her hours of work are too conclusory to support her claim. (Docket Entry 9, at 6.) And it argues that, contrary to the assertions in Plaintiff's complaint, federal law presumes that she did not work 24 hours a day, 7 days a week. (Id.) Defendant cites a Code of Federal Regulations, which provides that
An employee who resides on his employer's premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily, he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted.29 C.F.R. § 785.23 (2011). Plaintiff does not address this provision in responding to Defendant's motion-instead, she continues to insist that Defendant required her to work “24 hours a day, for as many as 7 days in a week.” (Docket Entry 15, at 1.)
Although the Court must accept all well-pleaded facts as true at the motion to dismiss stage, it is “highly implausible” that Plaintiff worked twenty-four hours per day for five, six, or seven days a week. Brito, 2022 WL 1719259, at *2. If true, this would mean that Plaintiff never slept for weeks at a time. Even the more tempered claim that Plaintiff worked a minimum 20 hours per day (See Docket Entry 1, at 7) seems highly doubtful, as four hours per days seems far too short to account for the reasonable amount for time necessary to eat, sleep, bathe, and attend to other necessary, private pursuits. Accordingly, as currently pleaded, Plaintiff has not alleged plausible facts in support of her claim for violation of the FLSA's minimum-wage provisions.
On the other hand, it is plausible that Plaintiff was required to be available as needed, and to provide services at all times, even in the middle of the night. Ultimately, “whether Plaintiff was engaging in normal private pursuits, such as sleeping, which are ordinarily not compensated, or whether she was working, is a question of fact that cannot be resolved at the motion to dismiss stage.” Brito, 2022 WL 1719259, at *2. And if Plaintiff was required to perform work only two-thirds of the time she was present (16 hours a day), she would not have been paid minimum wage.
Accordingly, while Defendant's motion to dismiss should be granted as to Plaintiff's minimum-wage claim under the FLSA as currently pled, Plaintiff should be given the opportunity to amend her complaint to make plausible allegations as to her work hours.
B. Overtime Compensation.
To state a claim for unpaid overtime wages, a plaintiff must plausibly allege four elements: “(1) that there existed an employer-employee relationship during the unpaid overtime periods claimed; (2) that the employee engaged in activities within the coverage of the FLSA; (3) that the employer violated the FLSA's overtime wage requirements; and (4) the amount of overtime compensation due.” Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369, 379 (5th Cir. 2019) (quoting Johnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014)). Again, it appears that Defendant's motion concerns only the third element.
Regarding overtime compensation, Defendant's motion to dismiss assumes that Plaintiff worked 10-hour workdays. On that assumption, for any given five-day work week, Plaintiff's $110 per day rate would equate to $10 per hour for the first 8 hours, with two hours of overtime at $15 per hour. (See Docket Entry 9, at 2.) And for those weeks when Plaintiff worked more than five days, she would receive $150 per day, or $15 per hour. (Id.)
In the context of its Rule 12(b)(6) motion, Defendant' argument fails because there is nothing alleged in Plaintiff's pleadings to support it. In ruling on a motion to dismiss under Rule 12(b)(6), the Court is limited to considering “the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011); see also Gomez v. Galman, 18 F.4th 769, 775 (5th Cir. 2021). In this case, there are no facts alleged in the complaint, or incorporated therein by reference, to support a 10-hour workday. To the contrary, Plaintiff alleges (however implausibly) that she worked a minimum of twice that amount. (Docket Entry 1, at 7.) And there are no documents attached to Plaintiff's complaint besides her consent to participate in a collective action. (See Docket 1-1.)
In arguing for the 10-hour day, Defendant cites to the employee handbook attached to its motion. (Docket Entry 9, at 2.) The handbook was neither attached to nor incorporated by reference into Plaintiff's complaint. As such, the Court cannot consider it at this stage. And even if the Court could consider it, the handbook nowhere indicates that Plaintiff's work was limited to 10 hours per day.
Once Defendant's 10-hour-day allegation is disregarded, its argument as to overtime compensation founders. This is true even if the Court were to assume that Plaintiff worked far fewer hours than the minimum 20 hours per day that she alleges: if Plaintiff worked only 11 hours per day, at the $10-per-hour rate proposed by Defendant, her five-day daily rate would afford her no overtime payment whatsoever. In any event, once Plaintiff makes plausible allegations as to the actual hours worked, See Part III(A) supra, the issue becomes a factual one to be addressed on the basis of evidence subsequently presented in the case. Cf. Brito, 2022 WL 1719259, at *2.
IV. Conclusion and Recommendation.
For the foregoing reasons, I recommend that Defendant's Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim (Docket Entry 9) be GRANTED IN PART and DENIED IN PART. The motion should be DENIED as it pertains to Plaintiff's FLSA overtime claim, but it should be GRANTED as it pertains to Plaintiff's FLSA minimum-wage claim, and Plaintiff should be permitted the opportunity to amend her complaint to allege a plausible number of hours worked per day.
V. Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the District Court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. An objecting party must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the party from a de novo review by the District Court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to, proposed findings and conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).