Boscarello v. Audio Video Sys. Inc.

• Decision Date: 20 April 2011
• Docket Number: Case No. 1:10cv1193.
• Citation: 161 Lab.Cas. P 35896,784 F.Supp.2d 577
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Christopher BOSCARELLO, Plaintiff,v.AUDIO VIDEO SYSTEMS, INC., et al., Defendants.

784 F.Supp.2d 577

161 Lab.Cas. P 35,896

Christopher BOSCARELLO, Plaintiff,

v.AUDIO VIDEO SYSTEMS, INC., et al., Defendants.

Case No. 1:10cv1193.

United States District Court, E.D. Virginia,Alexandria Division.

April 20, 2011.

Richard E. Patrick, Mayo Jermaine Wilson, Patrick Henry LLP, Annandale, VA, for Plaintiff.Yoora Pak, Kristi Lynette Johnson, Wilson Elser Moskowitz Edelman & Dicker LLP, McLean, VA, for Defendants.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

In this Fair Labor Standards Act (FLSA)¹ retaliation action, a former employee sues his former employer and the employer's owner alleging that defendants retaliated against him, in violation of 29 U.S.C. § 215(a)(3), by refusing to provide him work as an independent contractor following his submission of an affidavit supporting a current employee's FLSA claim against the employer. At issue on defendant's threshold dismissal motion is whether a former employee states a valid FLSA retaliation claim where, as here, the alleged retaliation consists of the employer's refusal to provide its former employee work as an independent contractor, work that the employer was not contractually obligated to provide, but which the employer indicated would be provided.

For the reasons that follow, plaintiff has stated a valid FLSA retaliation claim.

I.²

Plaintiff Christopher Boscarello, a resident of Colorado, brings this action against two defendants: (i) Audio Video Systems, Inc. (“AVS”), a Virginia corporation engaged in the business of installing and servicing audiovisual systems; and (ii) Peter A. Barthelson, president and owner of AVS. Plaintiff was employed by AVS from approximately March 15, 2003 to July 15, 2009, as lead technician and later as senior integration engineer. His duties in these positions were essentially the same, namely installing audiovisual display mounts, cleaning up the work area, gathering materials for jobs, and loading and unloading the service truck. In July 2009, plaintiff voluntarily resigned from AVS and entered into a nonexclusive subcontractor relationship whereby he agreed to provide audiovisual installation services as needed for AVS in exchange for an hourly rate to be determined for each job. Under the terms of the subcontract, AVS “[i]n no way ... guarantee[d] any minimum number of hours” to plaintiff. Compl. Ex. 1. The subcontract explicitly stated that “[t]he parties intended that an independent owner-subcontractor relationship will be created by this contract,” and that plaintiff “is not to be considered an agent or employee of [AVS] for any purpose.” Id. Plaintiff further agreed that he would not be “entitled to any of the benefits that [AVS] provides for its employees.” Each party retained the right to terminate the subcontract at any time with written notice. Id.

Between July and September 2009, plaintiff was contacted by AVS employees regarding “current and future work” for plaintiff to perform under the subcontract, which work was to begin in late 2009. Compl. ¶¶ 27–29. Plaintiff was subsequently informed that this work was delayed, but that he would still be needed for various projects in the coming months. Then, in September 2009, plaintiff agreed to submit an affidavit in support of an FLSA action filed by another AVS employee, Justin Rorrer. Rorrer sued AVS alleging wrongful denial of overtime pay, and plaintiff submitted an affidavit describing his first-hand observations of Rorrer's hours and AVS's treatment of Rorrer during the time that both men were employed at AVS. The affidavit was filed as an attachment to Rorrer's federal complaint, which named the same defendants named by plaintiff here.³ After Rorrer's complaint was filed, AVS ceased communicating with plaintiff (Boscarello) concerning upcoming projects and never provided him work under the subcontract. Various AVS employees and managers friendly to plaintiff told plaintiff he had been “blacklisted” at AVS, that his name was “mud,” and that if they spoke to him, they were told they would be fired, all in retaliation for plaintiff's affidavit in support of Rorrer. Compl. ¶ 40.

Plaintiff asserts that defendant's denial of work under the subcontract constituted an unlawful retaliatory action in violation of the FLSA, 29 U.S.C. § 215(a)(3). Defendants, in turn, move to dismiss the complaint, arguing (i) that plaintiff is not entitled to relief under the FLSA because he is an independent contractor, not an employee; and (ii) that plaintiff has not suffered an adverse employment action within the meaning of the FLSA. Defendant Barthelson also argues that the complaint raises no specific allegations as to Barthelson's conduct, and thus he should be dismissed.

II.

Dismissal pursuant to Rule 12(b)(6), Fed.R.Civ.P., is appropriate where the complaint does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). It follows that to survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949. And in this respect, it is also true that “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. (emphasis added). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id., quoted in Walker v. Prince George's County, Md., 575 F.3d 426, 431 (4th Cir.2009) (O'Connor, J.). Instead, the complaint must allege facts that, if true, plausibly satisfy each element of the claims for which relief is sought. Accordingly, the motions to dismiss must be granted if the complaint does not allege a sufficient factual basis to create a plausible inference that plaintiff is entitled to relief.

III.

Analysis of the motion to dismiss appropriately begins with the pertinent statutory language. The statute in issue here, 29 U.S.C. § 215 provides, in pertinent part:

(a) [I]t shall be unlawful for any person ...

(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding....

The statute further defines an “employee” as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). Furthermore, it is now well-settled that the term “employed” in § 203(e)(1) encompasses both current and former employees. See Darveau v. Detecon, 515 F.3d 334, 341–42 (4th Cir.2008) (citing Robinson v. Shell Oil Co., 519 U.S. 337, 345–46, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). Relying on the Supreme Court's analysis of Title VII's analogous provisions, the Fourth Circuit in Darveau noted that former employees are entitled to FLSA protection because, inter alia,

they often need references from past employers, they may face retaliation from new employers who learn they have challenged the labor practices of previous employers, and they sometimes must return to past employers for a variety of reasons, putting them once more at risk of retaliation.

Id. at 343 (citing Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 306 (5th Cir.1972)). Given the importance of the retaliation provisions to FLSA's enforcement scheme, the Fourth Circuit has also noted that the pertinent provisions must be construed “bearing in mind the Supreme Court's admonition that the FLSA ‘must not be interpreted or applied in a narrow, grudging manner.’ ” Darveau, 515 F.3d at 340; (quoting Tenn. Coal, Iron & R.R. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944)); Ball v. Memphis Bar–B–Q Co., 228 F.3d 360, 363–64 (4th Cir.2000).

Section 215(c) has been interpreted and reinterpreted dozens of times in cases stretching back to the FLSA's adoption, but the essential elements of a retaliation claim are easily discerned from the case law.⁴ In particular, Darveau provides the Fourth Circuit's most recent summary of the elements an FLSA retaliation claim, and it did so in the context of a retaliation claim brought, as here, by a former employee, making the case all the more pertinent to the present analysis. As the Darveau court recognized, an FLSA retaliation plaintiff must show three elements: (i) that he engaged in an activity protected by the FLSA; (ii) that he suffered an adverse action by the employer subsequent to or contemporaneous with such protected activity; and (iii) that a causal connection exists between the employee's activity and the adverse action. Darveau, 515 F.3d at 340.

Here, the parties agree that plaintiff has alleged sufficient facts with respect to the first element of his FLSA retaliation action. That is, defendants correctly concede that submitting an affidavit in support of another employee's FLSA action is a protected activity under the Act.⁵ Yet, defendants contend that plaintiff has not pled sufficient facts with respect to the two remaining elements of his claim. First, defendants argue that the denial of work to an independent contractor is not a cognizable adverse action within the meaning of the FLSA. Second, defendants argue that plaintiff has not pled sufficient facts to establish a causal connection between his protected activity and the denial of independent contractor work. In light of the statute and relevant case law, both of these arguments are without merit.

As to defendants' first contention, namely that plaintiff has not pled an adverse action under the FLSA, it is important to note that the term “adverse action” is given by the case law interpreting...