Conner v. Cleveland County Emergency Medical Services

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:18-cv-00002-MR-WCM
SARAH B. CONNER, individually )
and on behalf of all others )
similarly situated, )
)
Plaintiff, )
) MEMORANDUM OF
vs. ) OF DECISION AND ORDER
)
CLEVELAND COUNTY, NORTH )
CAROLINA, also known as )
Cleveland County Emergency )
Medical Services, )
)
Defendant. )
_______________________________ )
THIS MATTER is before the Court on the Plaintiff’s Motion for
Collective and Class Certification [Doc. 35]; the Defendant’s Motion to
Dismiss [Doc. 40]; the Magistrate Judge’s Memorandum and
Recommendation [Doc. 52] regarding the disposition of the Motion to
Dismiss; and the parties’ Objections to the Memorandum and
Recommendation [Docs. 54, 55].
I. BACKGROUND
Pursuant to 28 U.S.C. § 636(b) and the standing Orders of Designation
of this Court, the Honorable W. Carleton Metcalf, United States Magistrate
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Judge, was designated to consider the Defendant’s Motion to Dismiss and
to submit a recommendation for its disposition.
On June 27, 2019, the Magistrate Judge filed a Memorandum and
Recommendation in this case containing conclusions of law in support of a
recommendation regarding the Motion to Dismiss. [Doc. 52]. The parties
were advised that any objections to the Magistrate Judge’s Memorandum
and Recommendation were to be filed in writing within fourteen (14) days of
service. The parties filed their respective Objections on July 18, 2019.
[Docs. 54, 55].
II. DISCUSSION
The purpose of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§
201-219, is to ensure three things: (1) the payment of the federal hourly
minimum wage; (2) the limitation of work to the federal maximum number of
hours; and (3) the payment of time-and-a-half for all overtime. See generally
Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578 (1942) (discussing
history of FLSA). The FLSA has a special provision pertaining to police
officers and certain other public service employees that allows for the
payment of a set salary for all hours up to a set “overtime threshold.” 29
U.S.C. § 207(k). Any hours worked over that threshold number of hours
must be compensated as overtime. Id. The Plaintiff in this matter, and the
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class she proposes to represent, are all EMS personnel who fall within the
purview of § 207(k).
The Plaintiff’s federal claim, as set forth in the Amended Complaint, is
on its face contradictory. In Count I (the only federal claim), the Plaintiff
asserts that the Defendant has “violated the FLSA by failing to pay the
Plaintiff . . . an overtime premium rate of pay . . . for all hours worked in
excess of forty in a workweek.” [Doc. 22 at 13 ¶ 75]. In light of the application
of § 207(k) to the type of position held by the Plaintiff, this would not appear
to state a claim, as the standard “forty-hour workweek” rule does not apply.
This, however, does not end the analysis of the Plaintiff’s claim. The
Amended Complaint contains five pages and forty paragraphs of “Factual
Allegations,” which set forth the basis of her claim, notwithstanding the
erroneous, one-sentence summary of paragraph 75. In short, the Plaintiff
asserts that she and other EMS personnel employed by the Defendant
should be paid a salary up to the § 207(k) overtime threshold pursuant to a
particular County ordinance, but instead are paid a lower salary pursuant to
a “CCEMS Section 14-Pay Plan.” [Id. at 5-7]. The Plaintiff then proceeds to
set forth the conclusory allegation that the “Defendant evaded the overtime
provisions of the FLSA by failing to correctly calculate and pay all overtime
earned by all CCEMS full-time EMS personnel and by failing to pay all
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straight time [below overtime threshold] compensation due for nonovertime
hours under their contract.” [Id. at 8 ¶ 47]. The first part of that conclusory
allegation, however, is unsupported by any factual allegations pertaining to
an entitlement to overtime compensation. All the allegations pertain to the
dispute regarding what salary the Plaintiff and others similarly situated are
purportedly owed pursuant to this contract for “straight time,” i.e., for the work
hours below the § 207(k) overtime threshold. The Plaintiff tries to bridge this
gap with another unexplained conclusory allegation that the overtime
compensation paid “cannot be treated as ‘overtime compensation’ because
Defendant failed to pay Plaintiff and other similarly situated employees all
straight time compensation due for nonovertime hours due and earned under
their contract with Defendant.” [Id. at 8 ¶ 50].
The Plaintiff has presented no factual allegations to support a claim
that she or any other similarly situated employees have been insufficiently
compensated for hours they worked over the § 207(k) overtime threshold. In
fact, the Plaintiff appears to concede this point in her Objections to the
Memorandum and Recommendation, stating: “There is no dispute regarding
the number of overtime hours worked, the amount of overtime owed, or the
rate at which overtime should be paid. The FLSA violation arises solely from
the Defendant’s failure to pay all straight time wages each pay period prior
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to paying ‘overtime compensation.’” [Doc. 55 at 5-6]. In short, the entire
claim the Plaintiff presents pertains to what amount is owed for straight time
– not overtime – pursuant to the contract between the EMS employees and
the Defendant.
In making this “straight time” claim, the Plaintiff does not allege that
she and others similarly situated worked straight time hours for which they
were not compensated. Rather, she contends that she and other EMS
employees should have received straight time pay calculated in accordance
with a particular County ordinance, instead of pursuant to the CCEMS
Section 14-Pay Plan. [See Doc. 22 at 8 ¶ 49 (“Defendant … calculated
compensation based on the computation set forth in the CCEMS ‘Section
14-Pay Plan,’ thus resulting in the failure to pay for all straight time hours
worked; i.e. an amount less than the salaries established by Cleveland
County Code of Ordinances.”)].
The Court in Monahan v. County of Chesterfield, 95 F.3d 1263 (4th Cir.
1996), addressed precisely the issue presented here. “[I]f the mutually
agreed upon terms of an employment agreement do not violate the FLSA’s
minimum wage/maximum hour mandates and provide compensation for all
nonovertime hours up to the overtime threshold, there can be no viable claim
for straight gap time under the FLSA if all hours worked above the threshold
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have been properly compensated at a proper overtime rate.” Monahan, 95
F.3d at 1273. The Plaintiff concedes that all overtime hours over the
overtime threshold have been properly accounted for and appropriately
compensated. Therefore, in order to make out a viable FLSA claim, the
Plaintiff must assert plausible factual allegations that her “straight time”
compensation agreement either violates the minimum wage or maximum
hour mandates of the FLSA. The Plaintiff has made no such allegations on
behalf of herself or any other similarly situated employees. Rather, she
merely asserts that she and other employees were shorted on their straight
time pay pursuant to their contract. That is not a violation of the FLSA. That
is a state law contract claim.
In arguing that such a purely contractual claim still falls within the
FLSA, the Plaintiff relies on the official interpretation promulgated by the
Department of Labor as set forth in 29 C.F.R. § 778.315. This interpretative
provision “expressly requires that in order to determine overtime
compensation, one must first look to the employment agreement to
determine whether the employer has first paid all straight time due under the
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agreement.” Monahan, 95 F.3d at 1273.1 Section 778.315 provides as
follows:
In determining the number of hours for which
overtime compensation is due, all hours worked . . .
by an employee for an employer in a particular
workweek must be counted. Overtime
compensation, at a rate not less than one and one-
half times the regular rate of pay, must be paid for
each hour worked in the workweek in excess of the
applicable maximum hours standard. This extra
compensation for the excess hours of overtime work
under the Act cannot be said to have been paid to an
employee unless all the straight time compensation
due him for the nonovertime hours under his contract
(express or implied) or under any applicable statute
has been paid.
29 C.F.R. § 778.315 (emphasis added). The Court of Appeals in Monahan,
however, held that “if the mutually agreed upon terms of an employment
agreement do not violate the FLSA's minimum wage/maximum hour
mandates and provide compensation for all nonovertime hours up to the
overtime threshold, there can be no viable claim for straight gap time under
the FLSA if all hours worked above the threshold have been properly
compensated at a proper overtime rate.” 95 F.3d at 1273.
1 The Fourth Circuit noted in Monahan that while such “official interpretations” are not
controlling authority, they are nevertheless entitled to “considerable deference.” 95 F.3d
at 1272 n.10 (citation omitted).
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For these reasons, the Plaintiff’s FLSA claim (Count I) must be
dismissed for failure to state a claim. The only remaining claim is a state law
contract claim, which does not give rise to any federal subject matter
jurisdiction, other than discretionary supplemental jurisdiction. See 28
U.S.C. § 1367(a). With the dismissal of the sole federal claim, and given the
early stage of these proceedings, the Court in its discretion declines to
exercise such supplemental jurisdiction in this case. See 28 U.S.C. §
1367(c)(3). Accordingly, the Court will dismiss the Plaintiff’s breach of
contract claim (Count II) without prejudice so as to allow such claim to be
litigated in a proper forum.
III. CONCLUSION
After careful consideration of the Memorandum and Recommendation
and the parties’ Objections thereto, the Court finds that the Magistrate
Judge’s proposed conclusions of law are correct and consistent with current
case law. Accordingly, the Court hereby accepts the Magistrate Judge’s
recommendation that the Motion to Dismiss should be granted. In light of
the dismissal of the Plaintiff’s claims, the Plaintiff’s Motion for Collective and
Class Certification will be denied as moot.
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O R D E R
IT IS, THEREFORE, ORDERED that the parties’ Objections to the
Memorandum and Recommendation [Docs. 54, 55] are OVERRULED; the
Memorandum and Recommendation [Doc. 52] is ACCEPTED; and the
Defendant’s Motion to Dismiss [Doc. 40] is GRANTED as follows:
(1) The Plaintiff’s FLSA claim is DISMISSED WITH PREJUDICE;
and
(2) The Court declines to exercise supplemental jurisdiction over the
Plaintiff’s breach of contract claim, and such claim is therefore
DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that, in light of the dismissal of the
Plaintiff’s claims, the Plaintiff’s Motion for Collective and Class Certification
[Doc. 35] is DENIED AS MOOT.
The Clerk of Court is respectfully directed to close this case.
IT IS SO ORDERED.
Signed: August 21, 2019
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