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Pope v. Walgreen Co.

United States District Court, E.D. Tennessee, Knoxville

February 4, 2015

KENNETHA POPE, et al., Plaintiffs,
WALGREEN CO. d/b/a/ WALGREENS, Defendant.


THOMAS W. PHILLIPS, Senior District Judge.

This 45-plaintiff case, filed as a purported collective action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., is before the Court on defendant's motion to dismiss plaintiffs' complaint [Doc. 10] and plaintiffs' motion for permissive joinder of party or, in the alternative, Thomas Neidert's motion to intervene [Doc. 6]. Defendant has responded to the joinder/intervention motion [Doc. 9]. Plaintiffs have responded to the dismissal motion [Doc. 18], and defendant has filed a reply [Doc. 19]. For the reasons that follow, defendant's motion will be denied and plaintiffs' motion will be denied as moot.

I Relevant Facts[1]

Plaintiffs filed their complaint on September 22, 2014, alleging that they work, or have worked, in defendant's Tennessee stores as Executive Assistant Managers ("EXA") [Doc. 1 at ¶ 10]. According to the complaint, defendant scheduled plaintiffs to work a minimum of forty-four (44) hours per week [ Id. ]. Regardless of their schedule, plaintiffs regularly and repeatedly worked far in excess of forty-four (44) hours per week [ Id. ]. While employed as EXAs, plaintiffs contend that they primarily performed tasks generally associated with retail sales associates, such as unloading and unpacking merchandise, stocking shelves, positioning products based on predefined marketing strategies, assisting customers with their selections and purchases, operating cash registers, and maintaining the appearance of the store [ Id. at ¶ 11]. Plaintiffs contend that defendant assigned the actual managerial tasks of running the stores to store managers and district managers and plaintiffs had little discretion or autonomy when performing managerial tasks assigned by their respective store managers [ Id. at ¶ 12]. Defendant did not pay plaintiffs one-and-a-half times their effective hourly rate for those hours plaintiffs worked over forty in a single workweek [ Id. at ¶ 16]. Plaintiffs contend that defendant misclassified them as exempt from the FLSA's overtime requirement [ Id. at ¶ 18]. Plaintiffs now sue for unpaid overtime compensation.

II. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) sets out a liberal pleading standard, Smith v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004), requiring only "a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the [opposing party] fair notice of what the... claim is and the grounds upon which it rests, '" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but a party's "obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions." Twombly, 550 U.S. at 555. "[A] formulaic recitation of the elements of a cause of action will not do, " nor will "an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In deciding a Rule 12(b)(6) motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, draw all reasonable inferences in favor of the plaintiff, and determine whether the complaint contains "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "Determining whether a complaint states a plausible claim for relief will [ultimately]... be a context-specific task that requires th[is Court] to draw on its judicial experience and common sense." Id. at 679.

III. Analysis

Defendant moves for dismissal of this case in its entirety, arguing that the complaint does not plead sufficient supporting facts as required by Iqbal and Twombly. In the alternative, defendant moves for dismissal of plaintiffs' request for equitable tolling. Defendant argues that the complaint should be dismissed "because it fails to advance even one factual allegation about any of the 45 Plaintiffs" [Doc. 11 at p. 2]. Specifically, defendant argues that the complaint is insufficient and conclusory under the Iqbal standard because it is "devoid of any basic threshold factual allegations about any individual Plaintiff's employment as an EXA, such as the dates that any Plaintiff worked as an EXA, the store(s) that any Plaintiff oversaw while in that position, the number of overtime hours that any Plaintiff worked in any week, or even an estimate of any Plaintiff's weekly hours" [ Id. ]. In support of its position, defendant relies on several recent district and appellate court rulings from outside the Sixth Circuit.

It is worth noting at the outset that "[t]he level of detail necessary to plead a FLSA overtime claim... [is] one that has divided courts around the country." Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (citation and quotation omitted); Landers v. Quality Commc'ns, 771 F.3d 638, 641 (9th Cir. 2014) ("[t]he district courts that have considered this question are split"). In Pruell v. Caritas Christi, 678 F.3d 10 (1st Cir. 2012), the plaintiffs' amended complaint alleged in material part that, "Throughout their employment with defendants, Plaintiffs regularly worked hours over 40 in a week and were not compensated for such time, including the applicable premium pay." Id. at 13. The First Circuit deemed the allegations "little more than a paraphrase of the statute" and inadequate under Iqbal. Id. In affirming dismissal of the case, the First Circuit further criticized the plaintiffs for not describing the work they performed and for not providing examples and estimates of unpaid time. Id. at 14.

In Lundy v. Catholic Health Sys. of Long Island, the Second Circuit held that, to satisfy Iqbal, an FLSA overtime complainant must identify a particular week in which he was not compensated for work exceeding 40 hours. 711 F.3d 106, 113-14 (2d Cir. 2013). In Davis, the Third Circuit agreed with Lundy that "in order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege [forty] hours of work in a given workweek as well as some uncompensated time in excess of the [forty] hours." Davis, 765 F.3d at 241-42 (emphasis in original) (quoting Lundy, 711 F.3d at 114). Lastly, the Ninth Circuit recently "agree[d] with [its] sister circuits that in order to survive a motion to dismiss, a plaintiff asserting a claim to overtime payments must allege that she worked more than forty hours in a given workweek without being compensated for the overtime hours worked during that workweek. " Landers, 771 F.3d at 644-45 (emphases added).

In contrast, district courts within the Sixth Circuit have applied a less strict approach. For example, in Monroe v. FTS USA, LLC, No. 2:08-CV-02100-BBD-DK, 2008 WL 2694894, at *3 (W.D. Tenn. July 9, 2008), defendants argued that plaintiffs' complaint should be dismissed due to a lack of "any substantive allegations" such as job duties, specific weeks in which overtime was worked, and the number of hours they were underpaid. The court disagreed, finding that

Plaintiffs' complaint sufficiently states a claim under the FLSA for overtime compensation. Plaintiffs first allege Defendants are employers as defined by the FLSA. Plaintiffs further allege that they and other similarly situated employees are "technicians" routinely working overtime without compensation. Plaintiffs contend that Defendants knew that Plaintiffs worked overtime, which requires an increase to time-and-a-half pay rate. These ...

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