Opinion
Civil Action No. AW-00-CV-2617.
January 25, 2001.
MEMORANDUM OPINION
Currently pending before the Court is the Defendant Food Lion, Inc.'s Motion to Dismiss the Complaint with prejudice [6-1]. The Plaintiff filed a motion to Strike Exhibits [12-1], and a motion for Leave to File Sur-Reply [12-2]. No hearing is deemed necessary. See Local Rule 105.6. For the reasons stated below, the Court will grant Defendant's Motion to Dismiss as to the first count. However, the Court denies Defendant's Motion to Dismiss as to the second and third counts.
I. FACTUAL BACKGROUND
Plaintiff Kevin Higgins was employed by Defendant Food Lion between January of 1996 until July 1997. In his complaint, he alleges that the Defendant violated federal and state statutes by failing to pay him for the hours he worked at regular and overtime rates. He alleges that the Effective Scheduling system, administered by his employer resulted in him having to clock out after working a regular shift and completing unfinished tasks "off the clock." (Pl's Mem. Opp. Mot. Dis. at 2.). He was not compensated for these "off the clock" hours. Id. The Plaintiff further alleges that the Defendant's conduct was a violation of the public policy against involuntary servitude pursuant to the United States constitution. Thus, he requests relief based upon wrongful termination, and federal and state wage and hour laws.
Most of the relevant facts are not in dispute. The Defendant does not dispute that Plaintiff's complaint includes allegations of the Defendant's willful violation of state and federal law. Nor does the Defendant dispute the applicability of the three-year as opposed to the two-year statute of limitations period for purposes of reviewing its motion. Lastly, both parties seem to agree that the Plaintiff was an employee between January of 1996 until July of 1997. However, there is a disagreement between the Defendant and the Plaintiff as to when and how the Plaintiff was actually separated from the Defendant. The Plaintiff contends that his ultimate separation was involuntary. The Defendant alleges that Plaintiff quit by failing to return to work on July 21st and July 22nd. As a consequence, his termination was effective as of July 23rd.
II. DISCUSSION
Defendant's motion to dismiss is premised on his allegation that the Plaintiff's last day of employment puts Plaintiff outside of the statute of limitations period for federal and state claims. The Defendant argues that the action accrues on the last day of the Plaintiff's employment, and thus, to be viable the Plaintiff would have had to file the claim on July 19, 2000. The Defendant submitted evidence indicating that the complaint was filed more than three years after his last day of employment. According to Defendant, the evidence indicates that the Plaintiff's last day of employment was July 19, 1997, and the complaint was filed on July 21, 2000. Thus, the Defendant contends that the Plaintiff missed the statutory deadline by two days. In the alternative, the Defendant argues that no relief can be granted even if the Court finds that the Plaintiff did not miss the statutory deadline. According to the Defendant, it is only liable for unpaid wages that the Plaintiff earned within the three-year period ending on the filing date of the complaint. (Def. Mot. Dismiss at 2.). The Defendant maintains that, after July 19th, the Plaintiff was not working for the Defendant, thus the Plaintiff did not earn wages within the statutory period.
A. Legal Standard
The Court has the discretion to treat a motion to dismiss as one arising under Rule 12(b)(6) or Rule 56 when the motion to dismiss present matters outside of the pleadings. Fed.R.Civ.P. 12(b)(6). "The court has complete discretion to decide whether to consider the additional materials or to refuse to consider them and determine the motion under normal 12(b)(6) standards." Universal Test Equip. v. Heath, No. CIV. A. 3:99CV00103, 2000 WL 1566971 at *3 (W.D.Va. Oct. 20, 2000); accord Finley Lines Joint Protective Bd. Unit 200, Broth. Ry. Carmen, a Div. of Transp. Commun. Union v. Norfolk Southern Corp., 109 F.3d 993, 996 (4th Cir. 1997) (finding that Rule 12(b)(6) does not permit conversion upon service). A court may exclude extraneous material where to do otherwise would undermine the efficient resolution of the motion to dismiss. Id. at *3 Here, the Court finds that conversion would undermine the efficient resolution of the motion to dismiss. The Court will consider the Defendant's legal arguments, but will not consider the evidence upon which these arguments are based. In light of its decision not to treat the motion to dismiss as one for summary judgment, the Court denies Plaintiff's motions to Strike Defendant's exhibits and to file a Sur-Reply.
The motion to dismiss is granted where the plaintiff's claim for relief is insufficient. In assessing the sufficiency of the claim, the court's duty is not to determine whether the claimant will prevail, but whether the claimant is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232 (1974), overruled on other grounds by, Davis v. Scherer, 468 U.S. 183 (1984). It is well settled that the court can consider only the allegations in the pleading, Id., and the facts are to be construed in a light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411 (1969); accord DeSole v. United States, 947 F.2d 1169, 1171 (4th Cir. 1991). Where it appears beyond a reasonable doubt that the plaintiff as a matter of law can prove no set of facts in support of the claim that would entitle the plaintiff relief, the motion to dismiss should be granted. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Whereas, the motion to dismiss is not available where it is based on the judge's belief as to the strength of the plaintiff's factual allegations. Neitzke v. Williams, 490 U.S. 319 (1989).
B. Federal Fair Labor Standards Act (FLSA)
The Plaintiff's federal claims are not legally barred by the statute of limitations. The statute of limitations for violations of the FLSA has been construed in accordance with the continuing violations theory. Nealon v. Stone, 958 F.2d 584, 591 (4th Cir. 1992). In Nealon, the court found that "each issuance" of the paycheck constituted a new cause of action for the purpose of the statute of limitations period. Id. It is generally accepted that "a cause of action accrues for statute of limitation purposes at each regular payday immediately following the work period during which services were rendered and for which overtime compensation is claimed." Freeman v. National Broadcasting Co, Inc., 846 F. Supp. 1109, 1159 (1993), rev'd on other grounds, 80 F.3d 78 (2nd Cir. 1996); see also Knight v. Columbus, Georgia, 19 F.3d 579, 581 (11th Cir.), cert. denied, 513 U.S. 929, 115 S.Ct. 318 (1994) ("[T]he FLSA has been violated each time the [employer] issued . . . a paycheck that failed to include payment for overtime hours actually worked."); Mitchell v. Lancaster Milk Co., 185 F. Supp. 66 (M.D.Pa. 1960). As a consequence, Plaintiff can only recover the value of unpaid wages and overtime that were owed to him within the three-year period prior to filing the suit. See Brewster v. Barnes, 788 F.2d 985, 993 (4th Cir. 1986); Jenkins v. Home Insurance Co., 635 F.2d 310, 311 (4th Cir. 1980). In Brewster, the court found that after receiving a raise on July 1, 1977, the Plaintiff's wages were not equivalent to that of her male counterparts. 788 F.2d at 992. The Brewster court found that, as the wage disparity constituted a continuing violation, the plaintiff could recover for the portion of her back wages included in the two-year statute of limitations period running from the filing of her complaint. Id. at 993. All the other claims for wages that accrued prior to that point were barred. Id. Thus, assuming the applicability of the three-year statute of limitations for wilful violations, Plaintiff could state a claim for compensatory and liquidated damages reflecting overtime compensation not applied to any paycheck issued after July 21, 1997 in violation of the overtime provisions of the FLSA.
The FLSA provides fro a three-year statute of limitations period for willful violations applies. See 29 U.S.C. § 255(a). A willful violation arises when the "employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [EPA]. . . ." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 1681, 100 L.Ed.2d 115, 122 (1988). Assuming the truth of the facts alleged in Plaintiff's complaint, the Court shall apply the three-year statute of limitation for purposes of reviewing Defendant's motion to dismiss.
Assuming the facts as alleged by the Plaintiff as true, the Court believes that the Plaintiff's claim was filed within the statute of limitations period. As Scheuer instructs, the Plaintiff need not prove that he is entitled to relief, but that he is entitled to present evidence to support his federal claims. Scheuer, 416 U.S. at 236. Under FLSA, the Plaintiff is entitled to present evidence in support of claims where he has filed his claims within the statute of limitations period. Contrary to the Defendant's contention, the last date of the Plaintiff's employment is not dispositive of the statute of limitations issue. Like in Freeman, a cause of action accrues signaling the commencement of a limitations period, on each day for which a regular paycheck is issued or due. The facts alleged by the Plaintiff supports the Court's finding that the Plaintiff received at the least a final paycheck during the statute of limitations period. First, the statements of both parties indicate that they agree that the Plaintiff was working from January of 1996 at least until Friday, July 19th 1997. Secondly, the Defendant's motion indicates that it was not until July 21st that the Defendant received any indication that the Plaintiff was intending quit. Defendant's motion states that "[b]ecause Plaintiff did not come to work after July 19, 1997, he was consider a `no call no show' and considered to have resigned effective July 23, 1997." (Def. Mot. Dismiss at 2, 5.) Consequently, it is reasonable for this Court to infer that the Defendant would not have issued a final paycheck before receiving the alleged constructive notice of Plaintiff's intent to quit. As the Defendant's motion indicates that the Plaintiff's termination was not effective until July 23rd, the Court believes that it is unlikely that the Plaintiff would have received a final paycheck before his termination became effective.
For the aforementioned reasons, the Court concludes that the facts, as alleged, indicate that the Plaintiff was issued or was due a final paycheck after July 21, 1997; beginning a new statute of limitations period, on or after the 21st of July 1997. Accordingly, the Court denies Defendant's Motion to Dismiss as to the claims arising under FLSA.
C. Maryland's Wage Payment and Collection Act (the Act)
Plaintiff has a cause of action for the violation of employment laws where the statute of limitations has not eliminated all avenues for relief. Contrary to the Defendant's claims, the three-year statute of limitations does not begin to toll until the date for which the civil action accrues. MD. CTS. JUD. PROC. § 5-101 (1998). Section 3-507.1 creates a private right of action for employees "if `an employer fails to pay an employee in accordance with' either the `regular pay' requirements of section 3-502 or the `prompt pay after termination' requirements of section 3-505." Baltimore Harbor Charters, Ltd. v. Ayd, 134 Md. App. 188, 205, 759 A.2d 1091, 1100 (2000).
Under § 3-505 the violation of the Act is not the termination of the employment but the failure to pay `wages due for work that the employee performed before the termination of employment.' The failure becomes a violation upon expiration of `the day on which the employee would have been paid the wages if the employment had not been terminated.' That day is determined by the agreement of hire which, in turn, is regulated by the pay period requirements of § 3-502.
Battaglia v. Clinical Perfusionists, 338 Md. 352, 361-62, 658 A.2d 680, 685 (1995). Under the Act, employers are required to pay his employees at least once every two weeks or twice a month. MD. LAB. EMPL. § 3-502 (1998). According to MD. LAB. EMPL. § 3-507.1, the employee does not have right to private cause of action until two weeks after the day for which the employer is required to pay the employee pursuant to §§ 3-502 and 3-505. If after this two-week period has elapsed, the plaintiff has not received the wages he is due, he is entitled to file a claim against the employer for wages that he has not received. MD. LAB. AND EMPL. § 3-507.1 (1998). Thus, according to Maryland law, an employee who receives a biweekly paycheck has a separate cause of action for each paycheck that does not reflect the wage for which he is due. MD. LAW AND EMPL. § 3-507.1 and § 3-502 (1998). The statute of limitations on each cause of action would not begin until two weeks after the employer is required to pay the employee.
Assuming the truth of the Plaintiff's allegations, he does have a cause of action under Maryland law. While some disagreement exists as to the exact date for which the Plaintiff was terminated, both agree that the Plaintiff was working at least until July 19th. According to the law, an employer is required to pay Plaintiff all wages accumulated on or before the date for which he was terminated. Pursuant to § 3-507.1 and § 5-101, the statute of limitations on Plaintiff's cause of action did not begin to toll until two weeks after the day he was entitled to wages following his termination in July. At the least, the Plaintiff had until three years from August 2nd of 2000 to file the claim. Since the Plaintiff filed his claim on July 21, 2000, he was within the statute of limitations period. Therefore, the Court shall deny Defendant's motion as to this count.
D. Maryland's Wrongful Termination
In order to establish a claim for wrongful termination, the Plaintiff must demonstrate that the Defendant's conduct violated some clear mandate of public policy. Adler v. American Standard Corp., 291 Md. 31 (1981). Conduct which violates a federal or state statute may violate a clear mandate of public policy. See Watson v. Peoples Sec. Life Ins. Co., 322 Md. 467 (1991). In Waston, Defendant's conduct violated a clear mandate of public policy where its employee's actions constituted an assault as proscribed by the state law. Id. Although Maryland's high court has not spoken definitively on the matter, the Court believes that conduct constituting involuntary servitude as proscribed by the Thirteenth Amendment of the United States Constitution would violate a clear mandate of public policy.
As a general rule, a wrongful termination claim may not be premised upon a public policy expressed in a remedial statute. Chappell v. Southern Md. Hosp., Inc., 578 A.2d 766, 768-71 (Md. 1990), Makovi v. Sherwin-Williams Co., 316 Md. 603 (1989). However, the rule as stated in Makovi has its limitations. When deciding Makovi, the court recognized the possibility of a policy interest codified in a federal statute that may be reflected in "multiple sources." Insignia Residential Corp. v. Ashton, 755 A.2d 1080, 1081 (Md. 2000). In such cases, the wrongful discharge claim reflecting a policy interest embodied in a statute may be valid. Id. Public policies that are independent and not exclusively derived from a statute that provides its own civil remedy would be another limitation. In Watson, the court found that the public policy against assault and battery did not arise exclusively arise from federal laws prohibiting sexual harassment. Insignia, 755 A.2d at 1085 (interpreting Watson v. Peoples Sec. Life Inc. Co., 322 Md. 467, 481 (1991)). Thus, the wrongful discharge claim predicated upon a co-worker's physical attack upon the plaintiff was valid. At the same time, the Watson court found that the action against the employer was not available to vindicate the public policy against hostile work environments, because eradicating a hostile work environment as a policy interest did not exist independent of Title VII. Id.
The wrongful discharge action filed by the Plaintiff was premised upon a public policy interest against involuntary servitude arising from the Thirteenth Amendment of the United States Constitution, thus the Makovi rule is inapplicable. As in Watson, the public policy against involuntary servitude does not arise from a single source. Arguably the prohibition against involuntary servitude underlies FLSA as well as the Constitution. Unlike sexual harassment considered in relation to Title VII, involuntary servitude is very much independent of FLSA. The policy against involuntary servitude has its roots in the United States Constitution. See U.S. CONST. amend XIII. Finally, the United States Constitution does not provide statutory remedies for violations of its prohibitions against involuntary servitude.
The similarity between a public policy interest that lacks a civil remedy and one that possesses a civil remedy does not implicate the Makovi rule. The court in Insignia disagreed with the Defendant's argument that Makovi rule is applied whenever ". . . discharge might be found to be an act of sexual harassment for which a remedy exists under the employment discrimination laws." Insignia, 755 A.2d at 1084. For example, in Lucas v. Brown Root, Inc., 736 F.2d 1202, 1205 (8th Cir. 2000) interpreted in Makovi, 316 Md. at 620, the Eighth Circuit considered whether it should recognize the public policy exception to the employment at will doctrine where Title VII provided a remedy for conduct which offends the state public policy against prostitution. In resolving this issue, the court did not examine whether the form of prostitution experienced by the plaintiff constituted sexual harassment as proscribed by Title VII. Lucas, 736 F.2d at 1205. Rather, the Lucas court examined the unremedied public policy interest first, and concluded that the Defendant's threats to fire the Plaintiff for refusing to sleep with him amounted to a violation of the state criminal law against prostitution. Id. "The court reasoned that `a woman invited to trade herself for a job is in effect being asked to become a prostitute.' Prostitution was a crime denounced by Arkansas statute" Makovi, 316 Md. at 620 (interpreting Lucas v. Brown Root, Inc., 736 F.2d 1202, 1205 (8th Cir. 2000)); accord Insignia, 755 A.2d at 1086. Whereas, in Watson, the Makovi rule was applied where the public policy at issue originated from a remedial statute. Watson, 322 Md. at 480 (finding that hostile work environment, as a public policy interest, arose exclusively from Title VII, a remedial statute). Thus, the remedial statute's preemptive authority or its role as the original source of the public policy interest implicates the Makovi rule.
In the instant case, the public policy against involuntary servitude, albeit related to the hour and wage restrictions of FLSA, does not trigger the application of the Makovi rule. The public policy against involuntary servitude whether it arises from state law or the United States Constitution is not preempted by FLSA. The public policy against involuntary servitude is not exclusively derived from a state statute or FLSA. It has its roots in the Thirteenth Amendment of the United States Constitution. Thus, the wrongful discharge claim would be actionable if the Plaintiff alleged facts to show a violation.
Nevertheless, Plaintiff's wrongful termination claim is legally deficient, and thus, does not provide a claim under which relief could be granted assuming all the truth of all the facts. While involuntary servitude would constitute a clear mandate of public policy, the Defendant's conduct, as alleged by Plaintiff, does not satisfy the legal requirements for involuntary servitude. To establish a violation of the Thirteenth Amendment, the Defendant's conduct must have forced the Plaintiff to labor through threats of violence. Herndon v. Chapell Hill-Carrboro, 89 F.3d 174, 180 (4th Cir. 1996). "In the Thirteenth Amendment context, `subtle or indirect' pressure to work does not render that work involuntary." Id. at 180-81. Here, Plaintiff does not provide any facts or allegations to indicate that he would have been subject to criminal sanctions if he quit. See Pollock v. Williams, 322 U.S. 4, 64 S.Ct. 792 (1944). Nor does the Plaintiff allege that the Defendant subjected the Plaintiff to threats of violence. At the most, the Defendant's conduct amounts to threatening discharge for noncompliance with its Effective Scheduling system. Such allegations, as a matter of law, do not give rise to a violation of the Thirteenth Amendment. See International Union, U.A.W.A., A.F. of L., Local 232 v. Wisconsin Employment Relations Bd., 336 U.S. 245, 251 (1949), overruled on other grounds by, Lodge 76, International Ass'n of Machinists and Aerospace Workers, AFL-CIO v. Wisconsin Employment Relations Comm'n, 427 U.S. 132 (1976); Burger v. American Maritime Officer Uniton, No. CIV A 97-2085, 1999 WL 223164, *2 (E.D.La. Apr. 14, 1999) ("Where an employee has the ability to terminate his employment relationship, a claim of involuntary servitude does not lie under the Thirteenth Amendment."). Accordingly, the Court shall grant Defendant's motion as to Count I of Plaintiff's complaint for wrongful termination.
III. CONCLUSION
In summary, the Court will not treat the Defendant's Motion to Dismiss as motion for summary judgment. In accordance with the standard for reviewing the legal sufficiency of Plaintiff's complaint, the Court finds that the Plaintiff's claim was not barred by the statute of limitations. See Fed.R.Civ.P. 12(b)(6); 29 U.S.C.A. § 255(a). A cause of action accrues for statute of limitations purposes on the date the Plaintiff's regular pay check was due or issued in conformity with the continuing violation theory. Nealon v. Stone, 958 F.2d 584, 591 (4th Cir. 1992). When viewed in the light most favorable to the Plaintiff, the facts indicate that the Plaintiff filed his claim within the statute of limitations period. Unlike the federal claims, a state cause of action accrues two weeks after the regular pay check was due. MD. CODE ANN. LAB. EMPL. § 3-507.1 (1998). Thus, according to the undisputed facts, the statute of limitations could not have begun any sooner than August 2, 1997. Thus, the statute of limitations would not have tolled until, August 2, 2000, two weeks after the Plaintiff filed his complaint.
However, the Court finds that the Plaintiff's wrongful discharge claim is legally insufficient. The Defendant's conduct as alleged by the Plaintiff did not constitute a violation of United States Constitution's prohibition against involuntary servitude under the Thirteenth Amendment. Involuntary servitude as alleged by the Plaintiff lacks the requisite state action or physical or legal coercion.
For the reasons stated above, the Court will grant in part the Defendant's Motion to Dismiss as to the wrongful discharge claim, and will deny in part the Defendant's Motion to Dismiss as to the claims arising under Maryland's wage and payment laws and FLSA. An Order consistent with this Memorandum Opinion will follow. The Court will issue a scheduling order under separate correspondence.